On the causality of attestations on annual financial statements for the decision of investors – using the example of Wirecard
ZIP, 2021, 2470-2480 | Verlagshaus Dr. Otto Schmidt, Köln | Kai-Oliver Knops (Author): In classic prospectus liability and advisory liability cases, the case law has developed tools that can be used to determine whether and to what extent the misinformation for the decision to purchase or hold the security has become causal. In order not to deprive investors of their rights en masse because of the often considerable difficulties in providing evidence, it works with figures of “informative behavior” or “creating an investment mood”, but at the same time always tries to limit the liability of those responsible for information to those who are actually affected. This is to be investigated with regard to the liability for incorrect certificates issued by the now insolvent Wirecard AG.
The publicly available annual financial statements and management reports of Wirecard AG (hereinafter only AG) for the years 2016 to 2018 were given an unqualified audit certificate by the auditing company (hereinafter only WP). After irregularities began to appear in the business press, initially from 2009, but then increasingly in 2017, and the publication of the annual report for 2019 was postponed several times, the AG commissioned another auditing company to carry out a review. In a report, which was published on April 27, 2020, they found numerous deficiencies in the examinations by the WP. The WP itself only informed the Federal Financial Supervisory Authority (BaFin) about this on June 16/17, 2020. After the AG was unable to submit a certified annual report, it was the first DAX group ever to file for bankruptcy on June 25, 2020, which meanwhile had a market value of more than € 12 billion. Since then, shareholders and investors have made use of the WP for payment of damages, primarily from Section 826 of the German Civil Code (BGB). It is questionable whether an assumption of correct behavior can be assumed with regard to the incorrect certificates of the WP, i.e. these are causal for the purchase decision or whether the investors have to explain in detail and prove that they have relied on the correctness of these and therefore the shares of the AG have acquired or held. (…)