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Wirecard scandal: BAFin not liable

The Fed­eral Fin­an­cial Su­per­vis­ory Au­thor­ity (BAFin) is not li­able to in­jured Wir­e­card in­vestors. This has now been de­cided in the second in­stance by the Frank­furt Higher Re­gional Court (1 U 173/22), thus con­firm­ing the rul­ing of the lower court.

In June 2020, the fin­an­cial ser­vices pro­vider was forced to ad­mit that 1.9 bil­lion euros, which should have been in es­crow ac­counts in Asia, could not be found. As a res­ult, the share price plummeted dra­mat­ic­ally, and Wir­e­card had to file for in­solv­ency a short time later.

As a res­ult, the Ger­man fin­an­cial su­per­vis­ory au­thor­ity also came un­der heavy cri­ti­cism. For years, the BAFin had pro­tec­ted the then Dax com­pany and failed to dis­cover the fraud­u­lent activities.
Nearly 500 pro­ceed­ings by ag­grieved in­vestors are pending be­fore the Frank­furt Higher Re­gional Court, claim­ing dam­ages from BAFin. In the spe­cific case, claims for dam­ages of ap­prox­im­ately 40,000 euros were at issue.

How­ever, the court now ruled that the au­thor­ity had not vi­ol­ated its of­fi­cial du­ties. Thus, the plaintiff had “not presen­ted any tan­gible evid­ence for the as­sump­tion” that BAFin should have com­mis­sioned a spe­cial audit at an earlier point in time. The court also ruled out a claim for dam­ages for breach of of­fi­cial duty. The fact that em­ploy­ees of the su­per­vis­ory au­thor­ity held shares in Wir­e­card AG was also “not immoral”.

The de­cision of the Frank­furt Higher Re­gional Court is not yet final.

Action Options For Investors

How­ever, ag­grieved Wir­e­card in­vestors should not be un­settled by this rul­ing. The law­yers from the law firm Schirp & Part­ner already as­sumed when the Wir­e­card scan­dal be­came known that a law­suit against BAFin would have little chance of suc­cess. In­stead, we re­com­mend that those who are will­ing to sue as­sert their claims against Wir­e­card AG’s long-​standing aud­itor, Ernst & Young (EY).

In­jured parties can file in­di­vidual law­suits or join the Cap­ital In­vestor Model Pro­ceed­ings (KapMuG), which have been opened in the mean­time. In such pro­ceed­ings, the claims of ag­grieved in­vestors are bundled and legal dis­putes are re­solved in a single trial with a model plaintiff. The law firm Schirp & Part­ner rep­res­ents the largest group of sus­pen­ded pro­ceed­ings and has ap­plied to rep­res­ent the model plaintiff in or­der to ad­vance the KapMuG pro­ceed­ings as quickly as pos­sible and in the in­terests of the ag­grieved parties.

We will be happy to re­gister for the model pro­ceed­ings on your be­half. Fur­ther in­form­a­tion on the Wir­e­card scan­dal and our ac­tion against EY can be found here.

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