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Daimler emissions scandal
Daimler investors claim for damages.
KEY FACTS AT A GLANCE:
- When can claims for compensation be justified? Purchase between 10.07.2012 and 20.06.2018.
- Which shares are affected? Daimler stocks and bonds, as well as derivatives.
- Do the claims for compensation assume that the shares were still held in the portfolio on 20.06.2018? No.
Kirchentellinsfurt, January 7th, 2020
Dieselgate: Investors file suit against Daimler AG
- Claims for roughly EUR 900 million in damages filed with Regional Court of Stuttgart by institutional and private investors
- Establishment of a model case for Higher Regional Court of Stuttgart to rule on imminent
On behalf of 219 institutional investors, the Tübingen law firm of TILP Litigation Rechtsanwaltsgesellschaft mbH (“TILP Litigation”) filed suit on December 30th, 2019, against Daimler AG (“Daimler”) with the Landgericht (Regional Court) of Stuttgart for damages totaling EUR 896 million. The plaintiffs include banks, capital management companies, insurance companies and reinsurers as well as pension funds from Germany, other Member States of the European Union, Northern America, Asia, and Australia.
The lawsuit is based on purchases of Daimler shares of stock (ISIN DE0007100000) made in the period from July 10th, 2012, until June 20th, 2018 (the so-called “disinformation phase”). The investors bringing the action claim that in connection with the Diesel scandal, Daimler violated duties under capital markets law. In particular, they allege that Daimler deliberately concealed the use of illegal defeat devices in the Diesel vehicles manufactured by the company, failed to disclose the risks and costs that this entailed, and misrepresented the actual circumstances to the capital markets. Over the course of the disinformation phase from July 10th, 2012, until June 20th, 2018, the price of Daimler’s stock fell from over EUR 90 to below EUR 60. The damages suffered as a consequence are the subject matter of the actions now being brought.
“Any issuer of securities listed on a stock exchange must promptly and fully inform the capital markets of any inside information. We are convinced that Daimler failed to do so, both in its financial reporting and in ad-hoc notices,” explained Andreas Tilp, attorney. “This means that the plaintiffs bought the Daimler stock at too high a price, and it is our conviction that Daimler is liable to them for compensation of damages,” Tilp continued. His colleague Maximilian Weiss added, “We believe the claims against Daimler are excellently positioned. Further institutional investors that have suffered damages by significant share-price losses have let us know that they likewise intend to file suit in 2020.”
In September of 2015, the by now notorious Diesel manipulations by the Volkswagen Group became publicly known. Daimler reacted to the revelations by insisting that nothing of the sort had happened with Daimler vehicles and “categorically denie[d] any and all allegations of manipulation” in a press release on September 25th, 2015. Daimler’s CEO at the time, Dieter Zetsche, personally got involved and repudiated any suspicions of this nature in an interview he gave to the Sunday edition of the German daily Frankfurter Allgemeine Zeitung, stating that “a defeat device, i.e. a function that limits the efficacy of the emissions treatment in an inadmissible way, is not being used by Mercedes-Benz.” Nearly three years later, however, the Kraftfahrt-Bundesamt (Federal Motor Transport Authority) arrived at a different conclusion and ordered a first recall, in May of 2018, of Daimler vehicles equipped with illegal emissions-cheating devices. In June of that year, the Federal Minister of Transport Andreas Scheuer announced that “the Government will order 238,000 Daimler vehicles to be immediately recalled Germany-wide because of unauthorized defeat devices. In Europe, a total of 774,000 vehicles have been found to contain the software.”
Thereupon, TILP Rechtsanwaltsgesellschaft mbH (“TILP”) filed suit on behalf of a private investor and concurrently filed an application for the establishment of a model case in accordance with the Kapitalanleger-Musterverfahrensgesetz (“KapMuG,” Act on Model Case Proceedings in Disputes under Capital Markets Law). The Regional Court of Stuttgart held this application to be admissible and published it by notice. “Since TILP subsequently created all of the further formal pre-requisites necessary for model case proceedings to be conducted pursuant to the KapMuG, we expect an order referring the decision on the establishment objectives to the court of higher instance (Vorlagebeschluss) to be handed down in the near future, meaning that the model case proceedings may commence already before the summer break,” Andreas Tilp, attorney, summarized the process. At the end of 2019, TILP had brought further actions against Daimler on behalf of more than 100 private investors.
For the Daimler Dieselgate claims, the TILP law firms once again are cooperating with the litigation finance syndicate of Therium/DRRT, which stands ready to provide funding also for the actions Daimler investors may bring in 2020. The consortium is also already assisting the investors who brought actions in the Steinhoff accounting scandal. In those model case proceedings, TILP is representing the model-case plaintiff before the Higher Regional Court of Frankfurt am Main. At present, the proceedings have been suspended to allow settlement negotiations to take place.
On September 18, 2015 the Volkswagen emissions scandal was revealed (also know as "Dieselgate"). Although Daimler was not involved in the revelation at the time, its stock price began to drop and fall up to 16%, totaling 12.35 billion EUR in losses.
As a response, Daimler's CEO, Dieter Zetsche called a press conference on September 26 on which he categorically denied any emission manipulation at Daimler. This denial was included in Daimler's 2015 Annual Report. Daimler's price began a slow process of recovery. On May 23, 2017 raids in search of Dieselgate documents were initiated. Less than one month later, on July 21, 2017, Der Spiegel. A German news magazine revealed that the German car manufacturers Volkswagen AG, Daimler AG, Bayerische Motoren Werke AG (BMW), Audi AG and Dr. Ing. H.c. F. Porsche AG (together the "cartel") allegedly had been acting in concert since 1996 to suppress competition, gain and keep market share and increase their own profits.
As a result of the revelations, Daimler's stock price fell again considerably. The scandals also shed new light on Dieselgate. According to German weekly Der Spiegel, the cartel had agreed since 2006 on the reduction of the AdBlue (Urea) tanks used to control NOx emissions, and on the software designed to cheat emission tests (defeat devices), despite Mr. Zetsche's previous declarations. Additionally, German newsprint Süddeutsche Zeitung revealed that Daimler had already informed the German authorities of the existence of the cartel as early as by 2014, obtaining leniency in return. The German Federal Financial Supervisory Authority (BaFin) initiated an investigation against Daimler on August 7, 2017 regarding the violation of their ad-hoc disclosure duties regarding its cartel participation, its leniency application and its participation in Dieselgate. Finally, on May 24 and June 11, 2018, the German Government ordered the recall of more than 238,000 Daimler vehicles due to "inadmissible defeat devices" and Federal Minister of Transport Andreas Scheuer further announced that in Europe a total of 774,000 vehicles have been found to contain the software, calling again into question the veracity of Daimler's previous statements and affecting the price of the stock.
The pursuit of damage claims can be made under German law and in German courts, as the place of Daimler's incorporation. If the facts turn out to be true, the claims could be based on Daimler's violation of its disclosure obligations contained in § 97 (old 37b) and § 98 (old 37c) of the German Securities Trading Act (WpHG) as well as for its willful misconduct that harmed Daimler investors, sanctioned by §823(2) of the German Civil Code (BGB) in connection with several accounting statutes. Another statute of importance is the German general tort provision that sanctions the intentional damage caused to others by acting against good morals (§826 BGB). The currently applicable period in which damage claims have accrued and could be pursued is from July 10, 2012 to June 20, 2018.
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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 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.