Litigation/Disputes

Volkswagen faces $11bn damages claim

BY Richard Summerfield

German car manufacturer Volkswagen AG was taken to court on Monday as investors sought $10.6bn in compensation as a result of the 2015 ‘dieselgate’ scandal.

A small group of shareholders representing 1670 claims against Volkswagen and around 4000 other investors commenced legal proceedings at the Braunschweigh higher regional court in Northern Germany, just over 20 miles from Volkswagen’s Wolfsburg headquarters.

“VW should have told the market that they cheated and generated risk worth billions,” said Andreas Tilp, a lawyer for the investors. “We believe that VW should have told the market no later than June 2008 that they could not make the technology that they needed in the US.”

The scandal became public after the American Environmental Protection Agency (EPA) issued a public notice of violation in September 2015. The subsequent EPA investigation precipitated a collapse in the company’s stock price with shares in Volkswagen falling 40 percent over two days in September 2015, wiping billions off the company’s market value. As a result, in October 2015 the first group of shareholders filed suit against the company. They were later joined by institutional investors including BlackRock Inc., the California Public Employees’ Retirement System and Allianz Global Investors.

Volkswagen has admitted systematic emissions cheating, but denies wrongdoing in matters of regulatory disclosure, saying that the suit is unfounded. The company insists that a group of engineers acted without authorisation when fitting the ‘defeat devices’ which allowed Volkswagen’s vehicles to cut harmful emissions during regulatory testing, and says the information it had before the American authorities intervened was not significant enough to warrant warning capital markets.

“This case is mainly about whether Volkswagen complied with its disclosure obligations to shareholders and the capital markets,” Volkswagen’s lawyer Markus Pfueller told the court. “We are convinced that this is the case.” Mr Pfueller noted that the company was “confident” that it had “complied with its disclosure obligations toward shareholders and the capital markets”.

Factoring in previous settlements reached by Volkswagen, the company could ultimately pay around $35bn for its transgression, including payouts to US customers, states and regulators and a €1bn settlement with German prosecutors.

Judge Christian Jaede said the period from early 2014 onward was significant as this was when the company learned that US tests showed its diesel cars emitted far more toxic nitrogen oxide on the road than under laboratory conditions. A decision in the case is not expected until 2019.

News: VW investors sue for billions of dollars over diesel scandal

Institutional funds hit Tesco with £100m damages claim

BY Fraser Tennant

In a move set to send further shockwaves through the financial world, more than 125 institutional funds have filed a £100m claim for damages against Tesco PLC over alleged breaches of the Financial Services & Markets Act.

The aim of the legal action is to prove that Tesco made a series of misleading statements to the stock market – comments which (it is alleged) omitted pertinent information and resulted in investors making investment decisions based on erroneous data.

“The misstatement of profits leading to a dramatic collapse in the Tesco share price caused substantial damage to many shareholders who manage money for thousands of investors,” said Jeremy Marshall, chief investment officer at Bentham Europe, the litigation funder coordinating the claim for damages. “Investors have a right to rely on statements made by companies to ensure that they correctly allocate capital.”

 In October 2014, Tesco admitted to overstating its profits by £263m. Following the announcement, the retail giant posted a 92 percent fall in interim profits.

“Tesco has misstated its accounts, and in particular its treatment of payments from suppliers, to give the appearance of static trading margins,” said Sean Upson, a partner at Stewarts Law, which is leading the case against Tesco. “The reality was that those margins were falling.  Institutional investors were therefore misled when making investment decisions in respect of Tesco. This is precisely the type of wrongdoing which the Financial Services and Markets Act was designed to redress and therefore to prevent”.

Last month, the UK’s Serious Fraud Office charged three former Tesco executives – Christopher Bush, at one time Tesco’s UK managing director; Carl Rogberg, a former UK finance director; and John Scouler, who used to be Tesco’s UK commercial director for food – over the scandal, alleging that they acted dishonestly by giving false accounts of the commercial income earned by Tesco Stores as well as its financial position.

The men are scheduled to stand trial at Southwark Crown Court in September 2017. 

Jeremy Marshall concluded: “The (damages) claim will assert that Tesco’s misstatements are in clear breach of its obligations under the Financial Services & Markets Act and investors must be compensated.”

News: Institutional funds file 100 million pounds damages claim against Tesco

US diesel emissions scandal results in Volkswagen making $15.3bn settlement

BY Fraser Tennant

In a settlement which it undoubtedly hopes will draw a substantial line under the matter, German carmaker Volkswagen AG has agreed to pay $15.3bn to settle the charge that it cheated on its diesel emissions tests in the US – a scandal which has rocked the automotive industry to its very core.

Volkswagen’s settlement agreement – reached this week in conjunction with the United States Department of Justice (DOJ), the State of California and the US Federal Trade Commission (FTC) – also resolves the civil claims regarding Volkswagen and Audi 2.0L TDI diesel engine vehicles in the US made by private plaintiffs (represented by the Plaintiffs’ Steering Committee (PSC)).

The diesel emissions scandal first became public in September 2015 when Volkswagen acknowledged that it had deliberately misled officials by installing secret software (the so-called ‘defeat device’) to circumvent US emissions tests (thus allowing US vehicles to emit up to 40 times the legal limit for safe levels of pollution).

Also part of the Volkswagen settlement is an agreement by the carmaker to buy back vehicles from affected consumers, as well as to provide funding that could profoundly benefit the creators of cleaner technologies (this includes a $2.7bn environmental remediation fund and the investment of $2bn to promote the use of zero emissions).

Furthermore, Volkswagen has also agreed with the attorneys general of 44 US states, the District of Columbia and Puerto Rico to resolve existing and potential state consumer protection claims in a settlement valued at approximately $603m.

“We take our commitment to make things right very seriously and believe these agreements are a significant step forward,” said Matthias Müller, chief executive officer of Volkswagen AG. “We appreciate the constructive engagement of all the parties, and are very grateful to our customers for their continued patience as the settlement approval process moves ahead.

“We know that we still have a great deal of work to do to earn back the trust of the American people. We are focused on resolving the outstanding issues and building a better company that can shape the future of integrated, sustainable mobility for our customers.”

Despite the settlement, the process represents only a partial resolution for Volkswagen, as the carmaker continues to face a criminal investigation which may result in company executives being held accountable for the wrongdoing related to its diesel emissions testing.

News: Volkswagen Agrees to $15 Billion Diesel-Cheating Settlement

Another twist in HP's Autonomy dispute

Hewlett Packard (HP) has revealed its intention to sue the UK arm of accountancy firm Deloitte over its role in HP’s acquisition of British software company Autonomy Plc nearly three years ago.

HP made the announcement during the latest hearing in its protracted and bitter legal dispute with Autonomy’s former executives. The firm’s decision to pursue a case against Deloitte emerged as US Judge Charles Breyer refused to approve part of a settlement reached between HP and the shareholder group which is suing it over the Autonomy acquisition. According to Judge Breyer, HP’s attempt to pay the investors’ lawyers was a "potentially fatal" clause which meant he was not able to agree to the settlement.

A spokesman for HP noted that the company “will continue to work to hold the former executives of Autonomy as well as Autonomy’s auditor, Deloitte UK, responsible for the wrongdoing that occurred.”

Computing giant HP acquired Autonomy in an $11bn deal in 2011, but less than one year later was forced to make an $8.8bn write down on the transaction. HP alleges that the November 2012 write down came as a direct result of a number of accounting improprieties, misrepresentations and disclosure failures carried out by Autonomy and its executives during the acquisition process.

Following an extensive internal audit, HP dramatically revised Autonomy’s 2010 performance and noted that it had discovered “extensive errors – including misstatements” in Autonomy’s accounts, which were audited by Deloitte.

Deloitte has refuted HP’s claims, saying that any case brought against the firm would be “utterly without merit”. Deloitte has noted that neither HP nor Autonomy enlisted its services to carry out due diligence during the sale of Autonomy and that the firm merely served as an auditor to Autonomy at the time of the transaction.

Former Autonomy executives have claimed that the dramatic decline in the unit’s value was a result of poor integration planning on HP’s part, as well as in-fighting within the company’s wider organisation. Autonomy’s founder, Dr Mike Lynch, has also denied any wrongdoing, claiming that the company’s accounts were legitimate as they had been signed off by Deloitte.

News: http://www.cbronline.com/news/hp-to-sue-deloitte-uk-over-autonomy-deal-4354838

Russia pays price for playing dirty

BY Matt Atkins

Shareholders of the now defunct oil giant Yukos celebrated on Monday after an international arbitration panel ordered Russia to pay $50bn in damages for bankrupting the company.

The Hague court said Russian officials had manipulated the legal system to bankrupt Yukos, and jail its founder, Mikhail Khodorkovsky, for 10 years.

The court of arbitration rejected the Kremlin’s argument that the asset seizure was due to unpaid taxes, and described Russia’s actions as “devious and calculated expropriation". The Russian finance ministry has hit back, saying said the ruling was "flawed", "one-sided" and "politically biased". The ministry added that the Permanent Court for Arbitration in The Hague "had no jurisdiction to consider the questions it was given". The country is expected to appeal against the ruling.

The claim against the state was filed by a subsidiary for the financial holding company GML, once the biggest shareholder in Yukos Oil Co. "The majority shareholders of Yukos Oil were left without compensation for the loss of their investment when Russia illegally expropriated Yukos," said GML's Executive Director Tim Osborne. "It is a major step forward for the majority shareholders, who have been battling for over 10 years for this decision."

Responding to the news, Mr Khordorkovsky, who was at one point Russia's richest man, said it was "fantastic" that shareholders were "being given chance to recover assets". Mr Khodorkovsky forged  Yukos into Russia's largest investor-owned oil company following the collapse of the Soviet Union. He was arrested in 2003 and spent a decade in jail after being convicted of fraud and tax evasion but was pardoned last December. At the time of his arrest, he had been seen as a potential political rival to Vladamir Putin.

The question now is whether Russia will pay up. The Kremlin denies any wrongdoing, and payment of the fine under the ruling would prove an acceptance of defeat. Even if the state does not voluntarily accept the ruling, it can be enforced by shareholders seizing assets abroad. Shareholders of GML, however, have said that they are prepared to discuss the matter with Russia, according to a company spokesman.

News: Yukos shareholders say would talk to Russia over $50 billion compensation

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