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WHAT HAS HAPPENED?
On 18 June 2020, Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft (EY) announced that it found no sufficient proof of the existence of bank balances held in escrow account amounting to 1.9 billion Euro while acting as the auditor of Wirecard AG (Wirecard). Subsequently, it emerged that Wirecard has been manipulating its balance sheets for years and the company is in the middle of a fraud case of spectacular proportion.
Many years before the accounting scandal became known to the public, Wirecard has regularly been accused of a variety of accounting problems, including not properly disclosing and even falsifying its balance sheets. New and serious allegations were made from the beginning of 2019 especially by the British newspaper Financial Times. Fictitious revenues (third party acquiring), inflated purchase prices of companies to enrich managers, incorrectly booked merchant cash advance loans, as well as round-tripping by its companies in the United Arab Emirates, in the Philippines, and in Singapore make up only one part of the accusations leveled against Wirecard.
As a result of these public accusations of irregularities and questionable transactions, Wirecard shares repeatedly suffered substantial losses. Wirecard denied these accusations frequently. The Federal Financial Supervisory Authority (BaFin) had temporarily imposed a ban on short selling Wirecard shares.
Because of the persistent criticisms, the payment service provider tasked KPMG AG Wirtschaftsprüfungsgesellschaft (KPMG) to produce an additional special financial audit. This special audit, according to Wirecard, was supposed to definitively and independently dispel all accusations leveled against the company by the Financial Times. The publication of this special audit was delayed repeatedly though.
When the special audit was made public at the end of April 2020, Wirecard’s share price fell sharply by around 40%. In contrast to the expectations of the financial market, it emerged that the accusations could not be dispelled completely. On the contrary, the independent auditor claimed in the report that it did not have access to all the necessary files and was obstructed in its investigations. Many questions remained.
For example, KPMG could not confirm the existence of revenues from the so-called third party acquiring business relationships. Payments amounting to one billion Euro allegedly held in escrow accounts could also not be traced.
In the end, EY, which has acted as the auditing firm for Wirecard for many years, refused to confirm an auditing opinion for the first time on 18 June 2020. According to EY, there was no sufficient proof for a credit balance amounting to 1.9 billion Euro held in escrow accounts. On 22 June 2020, Wirecard announced that these accounts probably do not exist. This supposition was proven correct a short time afterwards. The Chief Operating Officer Jan Marsalek was then dismissed by the company. On 25 June 2020, Wirecard filed for insolvency. On 25 August 2020 the District Court in Munich opened insolvency proceedings for Wirecard and six of its subsidiaries. Shareholders suffered substantial losses.
Even though many indicators of wrongdoing by Wirecard were present, BaFin nevertheless did not undertake to do anything for a long time. The auditing firm EY, despite bringing to public the accusations of balance sheet manipulation, had certified the balance sheets of Wirecard for years. The prosecutor is now investigating and some members of the executive board are on the run or are remanded into custody.
WHAT DOES THIS MEAN FOR YOU AS AN INVESTOR?
It is our firm conviction that several parties are liable to pay compensation in the Wirecard case. Aggrieved investors therefore have several possibilities to pursue their claims.
In our opinion, the accounting firm EY, who has audited the annual financial statements for Wirecard since 2009 and has issued unreserved audit opinions despite obviously falsified balance sheets, is liable to pay compensation. We are also convinced that the accountants from EY completed their tasks in an inadequate and negligent manner without sufficiently investigating and finding out the facts beforehand. The unreserved audit opinions stretching back years against the backdrop of the accusations in the public sphere prove, in our view, the action of EY to be unconscionable. We are therefore of the firm conviction that EY is liable to pay compensation to investors. The corresponding action has been filed on 30 June 2020 at the District Court in Munich I. An application to initiate a model case proceeding has also been filed so as to pave the way for investors to participate in a model case proceeding pursuant to the Capital Market Model Case Act (KapMuG).
Furthermore, we accuse BaFin of disregarding its obligations by not investigating Wirecard for market manipulation despite numerous indicators of wrongdoing throughout the years. Instead, it acted against critical journalists who reported on this and against short sellers. Furthermore, we accuse BaFin of communicating to the capital market in an incomplete and misleading manner. BaFin is, in our opinion, liable with regards to investors on account of its abuse of authority.
In our firm conviction, Wirecard itself is also liable. The lack of compliance in Wirecard and the balance sheet manipulation are, in our view, inside information that has a significant relevance to the share price. Wirecard had had to inform the capital market promptly and in full. Substantial parts of the communication to the capital market from Wirecard are, according to the pertinent capital market regulations, therefore incomplete and untrue. However, against the backdrop of the insolvency proceeding against the company, it is inadvisable to file an action against Wirecard. We believe that it is much more sensible to register our claims within the framework of the insolvency proceedings.
WHAT SPECIFIC STEPS CAN YOU TAKE NEXT?
You can find out from TILP, free of charge, if you as an investor can claim compensation.
TILP is happy to prepare an individual assessment for you. For this purpose, we ask that you submit to us security statements for your transactions in Wirecard shares (WKN: 747206 / ISIN: DE0007472060) or derivatives. Please do so only for transactions from 10 July 2012 to 25 June 2020 inclusive. Note that claims for “out-of-pocket” damage can still be made even if you have sold your shares. The claim for “out-of-pocket” damage can be made regardless of whether the shares are still held or have been sold.
After seeing your documents and evaluating its content, we will be able to recommend a course of action for you and show you possible alternative actions that you can take.
For this purpose, we kindly ask you to enter your name, your email address, and your telephone number in order to register with us.
Answers to frequently asked questions
Firstly, TILP offers investors the opportunity to pursue their claims in the insolvency proceedings of Wirecard AG. You can find more information on this under "Questions about the insolvency proceedings".
Secondly, investors can pursue their claims for damages in civil proceedings and join the model case proceedings against other liable parties in particular - but not limited to - Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft (EY) and the Federal Financial Supervisory Authority (BaFin). You will find further details under "Model Case Proceedings".
Ernst & Young GmbH Audit firm
TILP has sued Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft (EY) before the Regional Court (LG) Munich I, for damages in a pilot case and at the same time filed an application for the implementation of a capital investor model case (Az. 3 O 5875/20). EY was the auditor of Wirecard AG and is, in our opinion, one of the key responsible parties and promising liability opponents.
We accuse EY of having performed its duties negligently for years and of having made unfounded statements as a result of insufficient investigations. We consider the unrestricted certificates issued for years to be recklessly wrong and unjustifiable. This is what made the years of fraud by Wirecard AG possible in the first place. Against this background, we believe that EY is liable to investors who have suffered damages in tort, including on the basis of Section 826 of the German Civil Code (BGB) for intentional immoral damage and for aiding and abetting Wirecard AG in the breach of its obligations under capital market law. We specifically accuse EY, among other things, of not having been allowed to recognize trust assets in the balance sheet in the first place. In our opinion, EY also failed to properly verify the alleged existence of various accounts and the amount of assets allegedly held in them. Furthermore, we are of the opinion that credit balances from and in connection with the so-called TPA business should not have been presented as cash equivalents if their existence had been assumed.
In many media reports, in connection with the liability of the auditors with reference to Section 323 of the German Commercial Code (HGB), their legal limitation of liability in the amount of EUR 4 million is mentioned. These reports are misleading, as the limitation of the auditor's liability only applies in the relationship between the auditor (EY) and the audited company (Wirecard AG) and its affiliated companies. In contrast, the liability of the auditor towards the aggrieved investors is not limited.
Federal Financial Supervisory Authority
Before the Regional Court (LG) Frankfurt am Main, TILP has sued the Federal Financial Supervisory Authority (BaFin) for damages in a pilot case and at the same time filed an application for a model cas proceeding (Case No. 2-4 O 264/20). In our opinion, the BaFin is also a promising liability opponent.
We are firmly convinced that there are claims for damages against the Federal Financial Supervisory Authority (BaFin) for purchases of financial instruments from February 18, 2019 to June 18, 2020. This period of damages is thus significantly shorter than for other liable parties We accuse the BaFin of disregarding its powers and, despite numerous indications, of not having investigated Wirecard AG for years on account of market manipulation, but rather of having acted one-sidedly over the years against critically reporting journalists and short sellers. Furthermore, we accuse BaFin of having communicated incompletely and misleadingly with the capital market. In our opinion, BaFin is therefore liable to injured investors on the basis of the liability case group of abuse of authority recognized in case law, for which reckless action by the authority is sufficient.
Some media reports state that the provision in Section 4 (4) of the Financial Services Supervision Act (FinDAG), according to which BaFin acts only in the public interest, excludes liability for misconduct on the part of BaFin. However, this is not correct in this general statement, as the highest court has recognized that this provision does not apply in the case of abuse of authority.
In view of the insolvency proceedings, we do not consider action against Wirecard AG itself to be expedient. Legal action against Wirecard AG will be interrupted as a result of the insolvency proceedings. We therefore advise aggrieved investors not to take legal action against Wirecard AG. Instead, there is the possibility of filing the claims for damages against Wirecard AG as claims to the insolvency table in order to preserve the chance of being compensated for part of the loss. We are happy to assist you in this. You can find out more under the point "Questions regarding insolvency proceedings".
Some media reports state that claims of shareholders as co-owners of a shareholding company are "at the very last place" in the insolvency and are subordinate. This is not the case here, however, as shareholders in their capacity as investors (not in their capacity as co-owners of the company under company law) are entitled to claims under capital market law which are of equal rank to the claims of other creditors, cf. sections 38, 39 of the German Insolvency Code (InsO).
Management Board and Supervisory Board of Wirecard AG
In our opinion, aggrieved investors also have claims against former members of the Management Board of Wirecard AG, in particular - but not exclusively - against Dr. Markus Braun and Jan Marsalek. Furthermore, claims against members of the Supervisory Board are also possible. However, under cost-benefit aspects, we currently advise investors in principle not to sue the aforementioned liable parties.
Other liable parties
We are continuously investigating other potential liable parties. If we consider appropriate measures against one or more additional potential liable parties to be appropriate and purposeful, we will also take legal action against them.
TILP has initiated model proceedings in Munich as well as in Frankfurt am Main in accordance with the German Capital Investor Model Case Act (KapMuG).
The model proceedings applied for in Munich revolve essentially around the liability of the auditing company Ernst & Young. We therefore call this model proceeding the "EY model proceeding".
In addition, TILP has filed an application for model proceedings in Frankfurt am Main, directed at a model proceeding against BaFin. We call this model proceeding the "BaFin model proceeding".
The background for the split into two model proceedings is that BaFin cannot become a model defendant in the model proceedings in Munich for compelling legal reasons based on the accusations we have made. For this reason, we have initiated a second model case proceeding in Frankfurt am Main against BaFin alone. In our opinion, the EY model case will certainly come about, whereas the BaFin model case would be the first of its kind and it is therefore uncertain whether the court will grant our application. We strongly support the conclusion of the BaFin model case. After all: model proceedings lead to a significant reduction in the costs of legal action and offer a significantly higher probability of success. That is why we are committed to model proceedings, which is what TILP specializes in.
If the Frankfurt court does not allow model proceedings, the lawsuits against BaFin will still be continued, then in normal civil proceedings.
How does a model case proceeding work?
The purpose of model case proceeding is to enable aggrieved investors to pursue their claims cost-effectively and jointly in a special model case and to clarify the central factual and legal issues in a uniform procedure binding to all parties. This concentration of proceedings significantly increases the probability of success for the plaintiffs and also reduces costs considerably. A model proceeding comprises several stages. Anyone who wishes to participate as a party must first file their own lawsuit (as an individual action or together with other injured parties as a so-called "class action") before the respective competent Regional court. If - as already initiated by TILP - admissible model lawsuits are filed in these lawsuits, the Regional court must first make them public. Subsequently, an order for referral is to be issued on the basis of the model procedural motions. The contents of a submission order are primarily so-called declaratory objectives, i.e. questions regarding the factual and legal situation in the Wirecard case. This order for referral represents the "work program" for the model case, which is then carried out before the higher Regional court. The lawsuits of all plaintiff investors are then to be suspended based on this model case. In this way, each plaintiff becomes a party to the model case. The investors then fight together against the defendants for their own rights in the model case. From the circle of the plaintiffs a so-called model lead plaintiff is selected. This is often an institutional investor. Against this background, a model case actually leads to a closing of ranks between small investors and institutional investors. The model case then ends with a so-called model case ruling, which can be reviewed by the Federal Court of Justice (Bundesgerichtshof), if the parties appeal and do not end the case by reaching a settlement. The findings made in the model case ruling then have a binding effect on the model case defendants and all investors who are involved on the plaintiff side of the model proceedings. The individual complaints of the investors are then decided in each case on this binding basis by the Regional court.
In short: The substantial material and legal questions are settled in a binding model procedure.
Who are the defendants in the "EY model case" and what are the allegations?
We have extended our pilot lawsuit, initially initiated only against Wirecard AG at Munich Regional Court I, the first investor lawsuit against Wirecard in Germany, to include Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft (EY) and (ex-) Wirecard Management Board members. We are firmly convinced that EY has breached its auditing obligations to a considerable extent and has therefore made itself liable for damages to investors who have suffered losses. We base the lawsuit against former members of the Management Board on the accusation of intentionally committing balance sheet falsification offences. After the order for reference has been issued by the Regional Court Munich I, we expect to start the model case before the Bavarian Highest Regional Court. Additional information can also be found under the point "Who are the defendants?
Who are the defendants in the "BaFin model case" and what are the accusations?
We have filed a first model proceeding application with the Regional Court of Frankfurt am Main to initiate model proceedings against BaFin. The model defendant in these proceedings will exclusively be BaFin. For legal reasons, a combination of these proceedings with the EY model proceeding is out of the question. If this model proceeding is also initiated, which is not clear, it will be conducted parallel to the EY model proceeding. Our complaint to the BaFin is based on years of abuse of authority in the Wirecard case. We have substantiated the abuse of office by the fact that BaFin in our view at least recklessly violated its legal obligations both to clarify, prevent and report market manipulations by Wirecard and to provide correct and complete information to the public and the capital market, which in our firm conviction constitutes official liability pursuant to Section 839 of the German Civil Code (BGB). TILP has combined this lawsuit with an application for a model case. We have filed the lawsuit against BaFin in Frankfurt am Main for reasons of jurisdiction. Additional information can also be found under the point "Who are the defendants?
Will Wirecard AG also be a model defendant?
No. Wirecard AG itself will not be a model defendant as a result of the insolvency proceedings, i.e. neither in the "EY model proceedings" nor in the "BaFin model proceedings". Due to the insolvency proceedings concerning the assets of Wirecard AG, we expressly advise investors not to file a lawsuit against Wirecard AG, both for legal and economic reasons. Claims against Wirecard should rather be pursued by injured investors in the insolvency proceedings. This is expedient and cost-effective. We will be pleased to help you pursue your claims in insolvency proceedings. You will find more details under the heading "Wirecard AG Insolvency Proceedings".
Is it even worthwhile to file your claims in insolvency proceedings?
We think so, despite the high level of over-indebtedness at Wirecard AG. After all, the unsecured lending banks are creditors of equal standing with the aggrieved investors.
Even though it is obviously not possible to quantify the exact amount of compensation for damages at present, we believe it is realistic to expect that a proportionate settlement of your claims for damages in the double-digit percentage range can be achieved.
In view of some misleading and in some cases incorrect media reports, we would first like to clarify that the claims for damages of the aggrieved investors, which the insolvency administrator includes in the insolvency table, are on an equal footing with other insolvency claims and are not subordinated to them. Thus, if payments are made to the creditors of the insolvency proceedings, these claims for damages are serviced proportionately, just like all other insolvency claims, such as those of banks that have extended unsecured loans to Wirecard AG.
The amount of the pro-rata disbursements then depends on the one hand on the total amount of the claims that are asserted and recognized as insolvency claims and on the other hand on the size of the insolvency assets that will be distributed.
Does one need a lawyer to assert the claim in insolvency proceedings? No. You could also make this registration yourself. However, the registered claim must be carefully substantiated. The requirements for this justification are similar to the requirements for a statement of claim, so we strongly recommend that you engage a lawyer to increase your chances that your claims will be recognized by the insolvency administrator. This also applies to the conclusive calculation of the amount of the claim including the so-called inflation damages.
This cannot be stated in general terms. The exact costs for you depend, among other things, on the exact measures you wish to take and the amount of your individual amount in dispute. We will be happy to calculate your damages free of charge and then inform you which reasonable measures are available to you and which costs are associated with which measure.
When are costs due?
You only incur costs once you have instructed our law firm in writing to exercise your rights on your behalf. Of course, we will inform you in advance about the costs for the respective measure and you can then make a final decision whether you want to assert your claims or not. Our examination of your claims as well as the calculation of your damages will be carried out free of charge.
Is there the possibility of litigation financing on a contingency fee?
Yes, TILP is working exclusively with Therium (https://www.therium.com/) as a litigation funder in the Wirecard case. For suitable cases Therium offers damaged investors, who registered with TILP, litigation funding on the basis of contingency fee against the Ernst & Young GmbH accountancy firm. This means that the aggrieved investor will not bear any costs for legal prosecution. In return, however, the investor must give up part of his proceeds to the litigation funder upon receipt of a compensation payment. Therium will finance the proceedings against EY within the framework of the model case according to the KapMuG for a 20% share of the proceeds. Therium will assume the necessary costs (legal fees and court costs) and in return, in the event of success (and only then) after deduction of these costs, will receive a 20% revenue share, which already includes any value added tax which may be incurred.
Therium is also considering financing the proceedings against BaFin, but we have not yet reached a decision on this.
However, Therium does not offer financing for the representation in the insolvency proceedings concerning the assets of Wirecard AG.
We will keep our clients and those registered with us informed about further details.
We firmly believe that purchasers of Wirecard financial instruments in the period from February 24, 2016 to June 18, 2020 (inclusive in each case) are entitled to compensation.
I bought before February 24, 2016. Can I also claim damages?
At present, we do not see a sufficient prospect of success for losses from transactions made before February 24, 2016. However, we cannot exclude the possibility that this will change. Against this background, we are happy to accept evidence of transactions from what we consider to be the earliest legally reasonable date, July 10, 2012.
I bought Wirecard financial instruments after the KPMG report of April 27, 2020. Can I also claim damages?
Yes, we firmly believe that transactions after April 27, 2020 also entitle to compensation if the purchases are made by June 18, 2020, 10:43:00 a.m.
I bought after 18 June 2020. Do I have a claim for compensation?
We firmly believe that claims for damages arising from acquisitions before June 18, 2020, 10:43:00 a.m. exist. However, no claims can be derived from later purchases. The background to this is that the capital market was informed on the morning of June 18, 2020, that Wirecard AG would not receive an audit certificate and that the whereabouts of 1.9 billion euros in Philippine escrow accounts are unclear, which is why the Wirecard share subsequently fell massively. The balance sheet manipulations became public knowledge at this time.
What types of investor losses exist?
There are basically two categories of damage. One kind is the inflation damage. Based on the German Securities Trading Act (WpHG), inflation damage is legally particularly easy to assert. As an alternative to or in addition to the inflation damage, the so-called rescission damage can also be claimed.
What is the inflation damage?
The inflation damage calculated by us for a Wirecard share purchased "too expensive" during the disinformation phase amounts to 13% to a maximum of 85% of the respective purchase price, depending on the transaction, which depends on in which one of the several "damage periods" you purchased. We will be happy to make the calculation for you free of charge.
The inflation damage is granted regardless of whether the share was sold at a higher or lower price than the purchase price and also regardless of whether a book loss exists. The only decisive factor is that the share was held by you at certain points in time. As of today it is no longer necessary for you to hold the share.
What is the rescission damage?
As an alternative to or in addition to the inflation damage, the so-called rescission damage can also be claimed. This means that the difference between the purchase and sales price of the Wirecard financial instrument is refunded. In contrast to the inflation damage, the prerequisite for this is that an actual (book) loss has occurred. For the rescission damage it is irrelevant whether and when the securities were sold. The only decisive factor is that they were purchased in the period from February 24, 2016 to June 18, 2020.
THE TILP GROUP
Trailblazers for investor rights
The affiliated law firms TILP Rechtsanwaltsgesellschaft mbH and TILP Litigation Rechtsanwaltsgesellschaft in Tübingen form together TILP Group (hereinafter "TILP") and stand for more than 25 years of experience and expertise in the field of banking and capital markets law. TILP is one of the leading and most experienced German law firms, since 1994 consistently, effectively and exclusively serving the interests of investors and shareholders. In many major commercial disputes TILP represents private and institutional investors, family offices and also public institutions. The media and competitors alike agree: For many years TILP has consistently been ranked among the absolute market leaders in banking and capital markets law. The Nomos Verlag names TILP in the Handbook of Law Firms in Germany 2014 ”the leading capital markets law firm-" According to publications of JUVE, the German legal industry’s news magazine, TILP is "one of the leading law firms representing both, institutional and private investors in banking and capital market law matters ... which ranks among the top tier addresses for years now and ... which decisively has shaped this field of law". Moreover, competitors attest TILP an “archetype function and high professional competence". In its annual handbook 2016/2017 the legal market journal JUVE has ranked TILP as the nation's only boutique law firm for financial disputes and securities litigation in the absolute top-tier for the category "Commercial Litigation and Liability". In its 2018/2019 annual handbook, JUVE names TILP as “strongly recommended law firm for financial disputes (investors)”.
TILP has effectuated more than 200 decisions of the Federal Court of Justice (Bundesgerichtshof) and the Federal Constitutional Court (Bundesverfassungsgericht) which were of fundamental importance for investor rights in Germany. The German newsprint FOCUS referred to the German Federal Court of Justice's decision on hidden commissions charged to investors (the so called "kickback decision"), which was argued by TILP in December 2006, as a "sensational decision" (edition 11/2007). For consumer advocates this decision constituted a landmark judgment and "major milestone in consumer protection".
TILP is a partner of the law firms TILP PLLC, New York and TILP Litigation Lda & Comandita (ZFDM), Funchal / Madeira, which specialize in the international representation of institutional investors and companies on the field of capital market and antitrust law.
TILP has designated expertise in the area of national and international collective redress mechanisms. At the national level this applies in particular to the so-called KapMuG proceedings under the German Capital Markets Model Case Act (KapMuG). In preparation of the 2012 reform Act to the KapMuG, Andreas Tilp was one of the nine experts invited by the Committee on Legal Affairs of the German Federal Parliament.