Wirecard: Will Shareholders Be Left Empty-Handed for Good?

Dec 16, 2022 Benn-Ibler Rechtsanwälte

The action brought by a capital management company against the insolvency administrator of Wirecard AG for determination of damages claims to be added to the insolvency table continues to be unsuccessful. The Munich Regional Court I stated that claims for damages under capital market law cannot be added to the insolvency table as an insolvency claim within priority under Section 38 of the German Insolvency Code (Insolvenzordnung, hereinafter InsO).

In the case to be resolved, the claimant capital management company had bought and sold shares in Wirecard AG for special assets managed by the company. The company now argued that Wirecard AG had intentionally breached its capital market information obligations. In awareness of the situation and without breaching its duties, the company would not have carried out the transactions aimed at acquiring Wirecard shares. As a result, the plaintiff believes that the company is entitled to claims for damages due to intentional immoral damage. Accordingly, the plaintiff filed these claims for damages for inclusion in the insolvency table.

As a first step, the regional court settled the question of whether the alleged claims constituted an insolvency claim pursuant to Section 38 InsO (that is, whether the plaintiff was an insolvency creditor). Only then could the claims asserted by the plaintiff be filed in the table. However, this legal question was answered in the negative. The claims (for damages) based on the shareholder position cannot fall under Section 38 InsO, according to the court. The fact that the plaintiff capital management company claimed that it had only obtained its shareholder position by deception cannot result in a differing assessment, according to the court. By purchasing shares, the plaintiff had chosen to make an investment in the Wirecard AG’s equity capital. The plaintiff had not been deceived about this type of investment.

A qualification under Section 38 InsO would also be contrary to the capital protection regulations. The claim for damages was financially directed towards reimbursement of the liable equity capital. In its case law, the German Federal Supreme Court established priority of liability for breaches of information obligations under capital market law only for the soliciting company, but not for the insolvent company.

Thus, the court dismissed the action without deciding whether there might be any claims for damages.

Press release of LG Munich I on Judgement 29 O 7754/21 (23 November 2022)