The Porsche SE has assisted investors in claims for damages in connection with the diesel scandal Volkswagen prevailed on one important point. In principle, the VW main shareholder Porsche SE (PSE) has an obligation to publish events at its largest investment in Volkswagen, the OLG Stuttgart explained on Wednesday in a test case. However, the PSE board cannot be attributed the same knowledge as the VW board, even if there are overlaps in terms of personnel. The Higher Regional Court judgment can be made before Federal Court of Justice (BGH) are challenged.
Hundreds of investors complain that Porsche SE informed the capital market too late about the diesel emissions scandal at Volkswagen that was uncovered in September 2015. They suffered losses due to the purchase of PSE shares that was too expensive. The legal volume amounts to a total of 929 million euros. In the opinion of the investors, PSE should have informed the capital market about Dieselgate by means of an ad hoc announcement both at the beginning of the emissions scandal in 2008, when the defeat devices were installed, and during the phase of disclosure by US authorities in 2014 and 2015 .
Plaintiffs are seeking damages for price losses
The PSE welcomes the court’s decision not to recognize most of the findings requested by the model plaintiff. Above all, the assessment of knowledge transfer confirms their view that the claims are unfounded, explained the holding company, which is controlled by the Porsche and Piech families. The PSE considered the lawsuits to be “obviously unfounded” from the start. One is a holding company and not a car manufacturer. For this reason, they were not involved in the development, manufacture or sale of diesel engines that had become conspicuous. The holding company welcomed Wednesday’s decision. A PSE spokesman said that the Higher Regional Court had thus confirmed the opinion of Porsche SE. The share
gained around 1 percent on Wednesday.
Model plaintiff is a pension fund of the British city of Wolverhampton, which is represented by the Frankfurt law firm Nieding + Barth and is demanding 5.7 million euros in damages. Lawyer Klaus Nieding stated that he would submit the case to the BGH. The law firm’s investor lawsuits against the Deutsche Telekom paid out, which after 20 years had to settle with 16,000 investors. “We will be very persistent here again,” said Nieding. The lawyer had to go as far as the Federal Court of Justice in order to enforce the capital investor test case against PSE in Stuttgart in parallel with the larger proceedings against VW and PSE in Braunschweig, which are ongoing in the same matter.
Dual function of top managers in focus
The main point of contention was the extent to which the top managers working for both companies also had to bring their knowledge of ad hoc processes at VW to PSE. Because at VW and its main owner there were and are double functions. At the time of the diesel scandal in 2015, former VW boss Martin Winterkorn (75) was also CEO of Porsche SE. Today’s PSE CEO Hans Dieter Pötsch (72) is Chairman of the Supervisory Board at Volkswagen.
In the opinion of the court, however, the double functions alone are not sufficient for a publication obligation. After all, there is a duty of confidentiality for the VW board members under threat of punishment. It can therefore remain open whether the circumstances surrounding the uncovering of the diesel scandal in 2014 and 2015 constituted insider information. Even at the beginning of the diesel scandal in 2008, the judges decided that the PSE did not have to sound the alarm. The interrogation of PSE board members Wendeling Wiedeking (70) and Holger Haerter (66), who were in office until the end of 2009, would not have revealed any indication that they knew about the illegal defeat devices or should have known about them.
VW had installed illegal defeat devices in around eleven million diesel cars worldwide, which led authorities to believe that they were complying with nitrogen oxide limits. In real operation on the road, the pollutant emissions were much higher. The fraud has already cost Volkswagen more than 32 billion euros.