Court ruling leaves hole in SolarWorld’s defence in US$700 million Hemlock lawsuit

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The main line of defence in SolarWorld’s US$700 million lawsuit with Hemlock Semiconductor has crumbled after a court in the US ruled it invalid.

The company was quick to stress that the anti-trust defence was just one defence of several with “equal value” and downplayed the impact of latest development in the three-year old case.

SolarWorld was looking to claim that the polysilicon supply contracts at the heart of the dispute with Hemlock breached anti-trust rules and so were invalid. In its annual report the anti-trust defence was specifically cited by SolarWorld as the reason the case’s risk was assigned low probability, despite the potentially huge damages it faces paying if it loses.

The annual report stated that:

“According to external legal opinion, there are anti-trust concerns under European law regarding the underlying silicon contracts, which could mean that the purchasing obligations of SolarWorld…are invalid and possibly that the supply contracts are null and void. As a result, according to external legal opinion, the supplier is not entitled to claim damages. However, there is a possibility which cannot be ruled out, that courts, especially in foreign countries, may have a different opinion or consider European anti-trust legislation not applicable.”

The anti-trust defence is now null and void but SolarWorld claims this does not impact the likelihood of it being forced to pay damages.

“The partial decision of the court on antitrust defenses [sic] is no judgement, but only relates to one of several defenses of equal value against the complaint and is of technical nature,” it said in a statement.

“The Company does not estimate the risk situation higher than at the beginning of the proceeding in March 2013 and has acknowledged the risk continuously in its financial statements. SolarWorld will use the expected further years of proceedings in the first and second instance that may follow to reach an agreement with the silicon supplier Hemlock to continue delivery. SolarWorld has achieved similar agreements with all its other silicon suppliers successfully.”

In February 2014, SolarWorld paid a “double digit” euro million charge related to a separate polysilicon contract.

SolarWorld’s annual report states that if it were forced to pay damages it would have “considerable negative impact” on the company’s liquidity “possibly even threatening the company’s continued existence”.

The company’s Q2 financial statement lists cash and cash equivalents of just over €141 million.

Original complaint

The original complaint by Hemlock in 2013 claims that SolarWorld subsidiary Deutsche Solar failed to fulfil supply contracts with Hemlock. It also claims that SolarWorld founder Frank Asbeck threatened to put the German subsidiary company into bankruptcy proceedings if amendments were not made to the supply agreements “in an effort to evade Deutsche Solar’s obligations”.

The court document goes on to state: “Mr. Asbeck further threatened that SolarWorld AG would seek to re-purchase Deutsche Solar’s assets out of bankruptcy for a de minimis amount and proceed with its solar panel business, thus freed of the Supply Agreements. Mr. Asbeck stated that Hemlock would then have little recourse but to attempt to recover against a bankrupt and asset-less debtor, Deutsche Solar”.

The case continues.

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