We have posted here on the securities litigation triggered by Porsche’s attempt to take over Volkswagen and covered some of its different angles. Things appeared to look not too bad for Porsche in the first court hearing in the German litigation in June 2012. Over the summer, news then were less favorable to Porsche:
In August, DER SPIEGEL published a lengthy piece, apparently based on inside information from the prosecution, on the current status of the criminal investigations against Porsche’s former top management (here’s the teaser, the article itself is paywalled). If DER SPIEGEL is to be believed, further criminal actions are to follow. The same month, the New York Supreme Court allowed various hedge funds to proceed with their case in the United States. The judgment raises the question whether the Porsche plaintiffs have found a way around Morrision, but that’s a different matter.
Today, however, was a good day for Porsche: As expected after the hearing in June, the Braunschweig District Court (Landgericht) dismissed the first two actions brought by investors against Porsche Automobil Holding S.E.. It also dismissed an action againt a bank, who was a joint defendant in one of the actions, for allegedly having helped Porsche in its controversial option strategy.
The court found that Porsche’s press releases describing Porsche’s strategy towards Volkswagen, were not “blatantly wrong” (grob falsch) or in violation of public policy (sittenwidrig). The court considered causes of action under securities laws, in particular the Securities Trading Act (Wertpapierhandelsgesetz, WpHG). The court held that the claimants had not shown a case of market manipulation (Sec. 20a WpHG). The court also dismissed causes of action based on tort, in particular Sec. 823 para.2 and Sec. 826 German Civil Code (BGB).
Today’s judgments can and most certainly will be appealed. Three further actions, which are in total seeking damages in the order of some billions, will most likely come to trial only in spring 2013. In the light of today’s judgments, these actions face an up-hill battle. They will need to show new facts and supporting evidence. Part of their strategy will be to see whether the criminal investigations will bring such new facts to light.