In the Wirecard scandal, frustrated investors can now hope for claims for damages against the auditing company EY after their immense price losses. This had certified the wrong balance sheets of the former Dax group. The Munich Higher Regional Court made serious doubts about the court decisions of the first instance public in a preliminary notice on Thursday. The Munich regional court dismissed lawsuits against EY without taking any further evidence. According to the OLG, the regional court - analogous to the diesel scandal - should have examined much more precisely whether EY was deliberately acting immorally.
The preliminary information does not mean that the OLG considers the auditors of EY to be jointly responsible in every case, or that the success of the lawsuits against the auditing company is now guaranteed.
However, the 8th civil senate of the OLG made it very clear that, in its opinion, the regional court dealt with the case far too superficially.
In particular, the Senate complains that the district court probably lacks “own expertise” to assess the allegations made against EY in an expert report by the auditing company KPMG.
According to the OLG, an expert opinion would have been appropriate for this.
Committee of Inquiry report ignored
In addition, the Higher Regional Court accuses the regional court of having ignored the report of the Wirecard investigative committee in the Bundestag, namely "in a manner that is unhearful" to the detriment of the plaintiff's investors. The OLG recommended the regional court to open a model case. As an option, however, the OLG is also considering referring the proceedings back to the regional court in order to catch up on the extensive evidence that has so far been missing.
Wirecard first admitted invented bookings in the amount of 1.7 billion euros in June 2020 and filed for bankruptcy a little later.
EY had previously checked and audited the company's balance sheets for years without discovering the alleged fraud.
The Munich public prosecutor's office assumes that the board acted like a criminal gang and deliberately falsified the balance sheets for years in order to steal bank loans and investor money.
Former CEO Markus Braun has been in custody for almost a year and a half.
For the shareholders, the Wirecard bankruptcy meant immense losses in the double-digit billions.
As a result, hundreds of claims for damages against EY have been received by the Munich district court, which have so far been dismissed.
The district court saw in several decisions no causal connection between the EY attestations and the losses of the investors, or no breach of duty by the auditors.
The OLG, however, has major concerns about this point of view: According to the Senate's assessment, an earlier refusal of the attestation by EY would also have resulted in an earlier application for insolvency by Wirecard AG.
On the basis of this, “general life experience would probably indicate that the investors would not have made the disputed share purchases with knowledge of this,” said the OLG's announcement.