Der u.a. for the statutory prospectus liability law competent XI. Civil Division of the Federal Court from the decision to 21. October 2014 of the appeals of investors, the representative of some 17.000 Applicant had lodged an appeal, and the appeal of Deutsche Telekom AG against the model case ruling from the Oberlandesgericht Frankfurt am Main from 16. More 2012 decided.
Subject of - in relation to the mass actions brought by shareholders of Deutsche Telekom AG - newly created investor-pattern method can only be generalized preliminary questions to the individual shareholder lawsuits be. The focus here is on the method (Un-)Accuracy of the occasion of the so-called “third IPO” Deutsche Telekom AG issued prospectus. In the year 2000 offered the German Telekom AG on the basis of this Prospectus 230 Million already admitted to trading shares from the holdings of the Kreditanstalt für Wiederaufbau (KfW) public sale to. After the price of the shares was strong like, it came from the year 2001 to numerous lawsuits against the German Telekom AG, KfW, the Federal Republic of Germany and part of the Underwriters.
In the sample before the Higher Regional Court of Frankfurt am Main, the lead plaintiff and the parties summoned on his side have made a number of errors prospectus submitted. The German Telekom AG as a pattern defendant has made the existence of a prospectus error to deny and rely, inter alia, the limitation period. The Higher Regional Court on the questions referred to it by repeatedly revised and supplemented original decision of the District Court decision of questions by pattern 16. More 2012 decided. A prospectus error has not it been found. Findings it has taken only on aspects such as the responsibility of the prospectus pattern defendant and limitation issues. In addition, it has rejected the declaratory relief on both sides.
The legal problems of the lead plaintiffs and the parties summoned on his side has the XI. Civil Division of the Federal Court repealed the decision pattern in a central point. Unlike the Court of Appeal he has regarding the events surrounding the intercompany transfer of the originally held by the defendant patterns shares of the US telecommunications company Sprint Corporation (Sprint) affirmed a prospectus error. He's the matter therefore for a new trial and decision on outstanding – generalizable – Remanded follow-up questions to causality and fault of the Higher Regional Court. In support, he stated essentially:
The Court of Appeal was right to consider them at the starting point, that the alleged prospectus liability claims under the special statutory prospectus liability under § 13 VerkProspG aF * iVm § 45 BörsG oF ** analog richten. Error of law in detention, the Court of Appeal, however, a prospectus error has denied, has come out in the Prospectus, the pattern defendant in 1999 due to the intercompany sale of its stake in Sprint a book profit of 8,2 Billion. Can realize €. In that regard, the prospectus is objectively wrong. Even for a balance knowledgeable investor was not apparent at all due diligent and thorough reading of the prospectus, that the pattern of the defendant Sprint shares not – as shown in the prospectus – sold, but by way of contribution in kind on its 100% owned subsidiary, NAB North America Beteiligungs Holding GmbH (NAB), has transferred (so-called. Reallocation). The prospectus shows that's not as necessary to, that the pattern defendant despite transfer of shares within the Group continued to wear the full risk of a price loss of Sprint shares with all dividend-related depreciation risks. The prospectus should have been presented, that the carrying value of the pattern defendant at the NAB to a result of the reallocation 9,8 Billion. € had risen. Only in this way would have been recognizable, that the carrying amount in the case of an exchange loss of Sprint shares would fall at the same height and therefore an impairment loss of the complete course loss – as here in the amount of 6,653 Billion. € – should be made, which in turn would have a direct impact on the net profit of the pattern defendants in future periods and thus the dividend expectation of the matters referred to in the prospectus, investors. All of this is not clear from the brochure to. Nowhere in the Prospectus, the NAB, their legal form, its business as a holding, the end of the financial year 1999 held the entire equity stake in Sprint, and the substantial interest of the patterns defendant at the NAB mentioned. On the contrary, the consolidated financial statements of the Prospectus under the heading “Significant investments” the capital share of the patterns defendant to Sprint FON 10,99 % and Sprint PCS with 11,28 % – based on the fiscal year 1998 – given. It was even a balance-informed investor's actual ownership in 1999 not be derived and the resulting risks.
Thus, the existence of a prospectus error for all the main proceedings is certain binding. However, it is not yet finally decided upon conclusion of the appeal process, whether the German Telekom AG is required due to the detected error prospectus basically actually pay damages. Additional – generalizable – establishing liability conditions, such as causality and fault (§ 46 BörsG aF ***), the Higher Regional Court – of his legal point of logical – so far made no findings. This will have to catch up after remittal of the test case.
The further attacks of mutual legal complaints against the model case ruling from the Oberlandesgericht Frankfurt out with the exception of side points to limitation any success. In particular, the Court of Appeal has decided not err in law based on a comprehensive assessment tatrichterlicher, that the value of the property belonging to the defendant patterns with more than 12.000 Land and ca. 32.000 construction works had not been much in the Prospectus too high.
Decision of 21. October 2014 – For example XI 12/12
LG Frankfurt am Main - Decision of 11. July 2006 – 3-07 OH 1/06
OLG Frankfurt am Main - Decision of 16. More 2012 – 23 Get 1/06
Karlsruhe, the 11. December 2014
* § 13 VerkProspG oF
(1) For the assessment of the securities essential information in a prospectus inaccurate or incomplete, then the provisions of §§ 45 to 48 of Börsengesetzes (…) apply mutatis mutandis: (…)
** § 45 BörsG oF
(1) The purchaser of securities, which are approved on the basis of a prospectus to trading, where essential to the assessment of the securities information is inaccurate or incomplete, can
1. of those, who assumed the responsibility for the prospectus and
2. of those, which pose the adoption of the Prospectus,
jointly and severally to the acquisition of the securities for a refund of the purchase price, provided that this does not exceed the first issue price of the securities, demand and the usual costs associated with the acquisition, provided that the acquisition transaction was concluded after the publication of the prospectus and within six months after the first introduction of the securities. (…)
*** § 46 BörsG oF
(1) That § 45 can not be claimed, who can prove, that he did not know the inaccuracy or incompleteness of the prospectus and the ignorance is not due to gross negligence.
(2) The claim under § 45 does not exist, provided
2. the facts, are included on the inaccurate or incomplete information in the prospectus, has not contributed to a reduction in the market price of securities,