Shareholders of the insolvent Wirecard AG cannot file claims for damages in the insolvency proceedings. This was decided by the LG Munich in a judgment dated 23.11.2022 (Case No. 29 O 7754/21).
In the Wirecard scandal, shareholders suffered significant financial losses. The hope of being able to assert claims for damages through the insolvency proceedings has been severely dampened by the judgment of the LG Munich. Since the shareholders are not creditors, they cannot register their claims in the insolvency table, ruled the court.
For Wirecard shareholders, there are ways to assert claims for damages independent of the insolvency proceedings. Capital market law offers the possibility of a model proceeding under the Capital Markets Model Case Act (KapMuG), explains the law firm MTR Legal, which has a focus on capital market law. Such a KapMuG proceeding is pending at the Bavarian Supreme State Court.
The model proceeding is against the former CEO of Wirecard AG and the auditors. The allegation against the auditors: they approved the Wirecard accounts for years, even though the figures had been inflated since 2015 according to the public prosecutor’s investigations. The model proceeding aims to clarify whether the auditors are liable for damages.
Shareholders can still join the model proceeding to assert their claims for damages. In the KapMuG proceeding, a model claimant is first determined. For this claimant and the defendant, the judgment is then binding. The decision can subsequently be applied to the other plaintiffs who have joined the KapMuG proceeding. Advantages of participating in the model proceeding include that there is no significant litigation risk for the plaintiffs and the limitation period for damage claims is suspended.
According to the judgment of the LG Munich, shareholders are likely to come away empty-handed in the insolvency proceedings. The court followed the principle that shareholders are equity holders and their claims are treated subordinately in the insolvency proceedings. The claims of the other creditors take priority. Union Investment had sued, arguing that the decision to invest in Wirecard shares was made due to false corporate figures and Wirecard had violated its information obligations. However, the LG Munich ruled that the deception was irrelevant for registering claims in the insolvency proceedings.
Lawyers experienced in capital market law advise Wirecard shareholders on their options. Registration for the model proceeding must be carried out by a lawyer.
