A plaintiff for everyone: Wirecard scandal: dampers for tens of thousands of shareholders

A first decision by the Bavarian Supreme Court dampens the hopes of tens of thousands of shareholders in the Wirecard scandal. Accordingly, no claims for damages against the auditing company EY, which had confirmed the balance sheets of the scandal company until its collapse in the summer of 2020, cannot be made in the investor pattern procedure.

The announced court president Andrea Schmidt. Sample plaintiff Attorney Peter Mattil called the decision “100 % wrong” and announced a complaint with the Federal Court of Justice.

The civil law sample procedure in front of the Bavarian Supreme Regional Court is running in parallel to the criminal trial, in which ex-CEO Markus Braun and two co-accused have had to answer for themselves since December 2022. According to the judge, almost 8,700 investors have now sued for damages. Another 19,000 have registered claims without complaining themselves.

As deputy model plaintiffs, the 1st civilians selected a Hessian banker who lost half a million euros with Wirecard papers. The plaintiff’s actual target is EY: The company is solvent, while ex-CEO Braun and Co., according to the general assessment, is no longer available.

Court President Schmidt justified the “partial pattern decision”: Only complaints can be bundled in sample procedures for incorrect information about the capital market. This means, among other things, false balance sheets and false duty notices on the stock exchange.

However, after argumentation by the Senate, EY did not publish the false Wirecard balance sheets, including the EY confirmation notation, but the Wirecard chiefs. In this respect, claims for damages against EY are “not permitted” in the sample procedure according to the court.

The former CEO Braun does not claim that the Wirecard balance sheets would have been correct: the manager, who has been in custody for over four and a half years, accuses a fraud gang to have stolen billions of billions to the group of ex-sales board.

Sample procedure against brown continues

The decision of the Bavarian Supreme Court does not mean that Wirecard shareholders could not complain against EY. However, according to the judge, the basis should be the “violation of test obligations”, not the wrong information of the capital market. The claims for damages against Braun and other former Wirecard sizes are further negotiated in the sample process without detour via the BGH. “It continues,” said Schmidt.

The complaints against EY will continue to go, but the procedure will take longer. “You have to say that it has become more complicated,” said Daniela Bergdolt, Vice President of the Investment Community DSW. “The procedure is torn apart.” The decision gives the plaintiff Wirecard shareholders “more stones than bread”. Sample plaintiff lawyer Mattil hopes that the BGH will decide on the complaint next year.

Since last year, according to the lawyer in the capital investor’s sample procedure – Capmug for short – it has been expressly regulated that claims for damages against auditors can also be asserted. Since Wirecard registered bankruptcy as early as 2020, this does not apply retrospectively. However, according to Mattil’s conviction, the original law also allows the compensation claim against EY in the sample procedure. “We believe that we have the much stronger arguments.”

A frozen process avalanche

If the BGH decides differently, the Munich I district court could have a frozen process avalanche. Sample procedures should actually accelerate the case law: A single process should clarify as an example whether droves of plaintiffs are entitled to compensation or not. Afterwards, the district court in Munich I would have to “only” deal with the individual details in the almost 8,700 procedures and decide whether and how much money is due to every single plaintiff.

As long as the sample process is running, the 8,700 lawsuits are exposed to. If the plaintiffs do not reduce their claims against EY in droves, the court would probably have to process individually from the start.

But a sample procedure does not guarantee a quick decision: the telecom process, the first sample process in Germany, is still considered a negative example. This lasted twenty years, according to the DSW estimates, 30 percent of the plaintiffs died before the end of the procedure, including the original model plaintiff.