Vodafone’s German cable division Kabel Deutschland is facing accusations of “material obstruction” of a court-commissioned inquiry after it deleted its former chief executive’s email account.
An independent auditor investigating the German company’s management over its 2013 acquisition by the UK telecoms group made the allegation in a May 2017 letter to the Munich court that ordered a probe into the deal’s pricing.
The emergence of the claim could prove problematic for Vodafone, which has been embroiled in a multiyear lawsuit with minority investors in Kabel Deutschland, including US activist hedge fund Elliott Management, over the acquisition’s pricing.
The shareholders, which together hold 23.4 per cent of the cable operator, are suing the British company to compensate them for what they say was an underpriced deal by Vodafone and Kabel Deutschland.
The judge hearing the case is expected to present his ruling on November 27 but the minority investors are calling for the decision to be delayed until the special audit has been completed.
The potential conclusion of the court case comes at a challenging time for Vodafone, which is facing the possible collapse of its Indian business and has cut its dividend to reflect higher operating costs.
If the court backs the minority shareholders, Vodafone faces further payouts to minority shareholders of up to €1.3bn.
The 2014 special audit into the €10.7bn Vodafone-Kabel Deutschland deal found there was “reasonable suspicion” the target’s senior executives had potentially violated their duty of care as their endorsement appeared “incomplete and implausible”. Vodafone and Kabel Deutschland reject this assessment.
Kabel Deutschland’s board recommended Vodafone’s offer of €87 a share. But calculations by investment banks advising Kabel Deutschland’s management suggested the target’s fair valuation including synergies was between €109.50 and €150.50, people familiar with the report told the Financial Times. Kabel Deutschland neither disclosed the higher internal valuations nor explained the gap.
Martin Schommer, the accountant who led the court-commissioned inquiry, said emails to and from Kabel Deutschland’s then chief executive Adrian von Hammerstein from April to September 2013 were deemed to be of “material significance”, according to documents seen by the Financial Times.
During the 2014 special audit, also led by Mr Schommer, Kabel Deutschland denied access to the emails, arguing those dates went beyond the timeframe of the audit’s narrower remit at the time.
In 2016 after the inquiry with a wider remit was launched, Kabel Deutschland told the auditor the emails no longer existed.
“This assessment was justified with the departure of Mr von Hammerstein at Kabel Deutschland and the subsequent deletion of his Outlook account,” Mr Schommer wrote in a letter to the Munich district court seen by the Financial Times. Mr von Hammerstein left Kabel Deutschland in 2014 to join Vodafone Germany’s supervisory board.
Mr Schommer also discovered that the emails had disappeared from Kabel Deutschland’s email archiving system. The auditor said the failure to hand over the communications of “a key player like the chief executive of Kabel Deutschland” amounted to a “material obstruction” of the special audit.
Daniel Bauer, chief executive of German shareholder protection association SdK, which is among the those suing Vodafone, said the deletion of emails was “an astonishing and inexplicable event” that “can create the impression that Kabel Deutschland may have tried to destroy evidence”.
Shareholders in Kabel Deutschland who raised the issue at the group’s subsequent annual meeting were told the deletion of former employee’s emails — including those of executives — was a standard procedure at the Vodafone-controlled company.
Thorsten Sörup, partner of Frankfurt-based law-firm Aderhold and a specialist in IT law, told the Financial Times that “the swift deletion of a former CEO’s emails is very odd and highly unusual, in particular for a company as big as Kabel Deutschland.”
He warned that such a policy made it “difficult if not impossible for a company to live up to its legal archiving and accounting obligations that are enshrined in Germany’s tax code and commercial law”.
He argued that a chief executive’s corporate emails are similar to business letters which by law have to be archived for six to 10 years, adding that deleting them earlier was “at odds with the management’s duty of care”.
Vodafone, Mr Schommer and Elliott Management declined to comment. Mr von Hammerstein could not be reached for comment.