Daimler "merger of equals" claim a fraud-Kerkorian


(Recasts throughout with Tracinda post-trial briefing)

By Tom Brown

DETROIT, April 23 (Reuters) - Pressing his claim for more than $1 billion in damages, Las Vegas casino mogul Kirk Kerkorian insisted on Friday that the so-called "merger of equals" that created DaimlerChrysler was a fraud.

Trial proceedings in the case brought against the German-American automaker by Kerkorian's Tracinda Corp. investment arm ended in February in U.S. District Court in Delaware.

But his lawyers summed up his arguments, and a litany of security law and common law fraud claims, in an 86-page briefing paper filed with the court on Friday. They asked the court to enter a judgment against the defendants, led by DaimlerChrysler Chief Executive Juergen Schrempp, in the amount of $1.35 billion plus interest, and whatever punitive damages, costs or fees are deemed appropriate.

The defendants acted with "evil motive, malice and reckless disregard for Tracinda's rights," Kerkorian's attorneys said.

Kerkorian was Chrysler's largest shareholder in 1998 when Germany's Daimler-Benz joined with America's Chrysler to form the world's fifth-largest automaker. He contends that Schrempp only pitched the deal as a merger rather than a takeover to lower the transaction price and avoid paying investors a "control premium."

"The evidence in this case -- almost all of which comes from the defendants themselves -- establishes exactly what Tracinda told the court it would prove, that defendants falsely portrayed the transaction as a "merger of equals," Kerkorian's lawyers said.

"The evidence also shows that one result of these misrepresentations was that no control premium was paid to Chrysler shareholders by Daimler," they added.

"Quite simply, defendants used the "merger of equals" storyline purposely to mislead Chrysler executives, the Chrysler board of directors, Chrysler shareholders, the United States Securities and Exchange Commission and the public in order to profit themselves."

Kerkorian's suit was sparked by comments Schrempp made in a wide-ranging interview with The Financial Times in October 2000, when he said he always intended to make Chrysler a "division" of DaimlerChrysler.

Kerkorian's attorneys said those comments, and other similar remarks Schrempp made to Barron's, were part of the "overwhelming evidence" that the German auto boss and his lieutenants "deliberately planned and systematically executed the fraud about which Schrempp boasted."

In its own post-trial briefing, also filed with the court on Friday, DaimlerChrysler urged dismissal of the case, saying it had no merits.

"Fundamentally, Tracinda's case was just made up by lawyers seeking to serve a billionaire investor still smarting from the rejection of his ill-conceived, unfinanced and failed takeover of Chrysler in 1995," the company said.

"Kerkorian, who enjoyed billions of dollars in profits from his investments in Chrysler and DaimlerChrysler, does not deserve a penny for his cynical and opportunistic claim," the company said.

Tracinda launched a takeover bid for Chrysler in April 1995 but it was rejected and Tracinda and Chrysler entered a standstill agreement resolving the situation in 1996.

According to Tracinda, Schrempp launched Daimler's bid for the company, a building block toward his goal of creating a global automotive empire, in August or September of 1995.

Judge Joseph Farnan, who tried the DaimlerChrysler merger trial without a jury, is not expected to rule for at least several months.



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