Judge Christian Jaede poses for media before the Model Case Act trial involving Volkswagen and Porsche and German Capital Markets in Braunschweig, Germany September 10 2018. Picture: REUTERS/FABIAN BIMMER
Judge Christian Jaede poses for media before the Model Case Act trial involving Volkswagen and Porsche and German Capital Markets in Braunschweig, Germany September 10 2018. Picture: REUTERS/FABIAN BIMMER

Volkswagen (VW) received mixed messages as German judges signalled their initial thoughts on a €9bn lawsuit by thousands of investors who claim the car maker misinformed them on the diesel scandal.

On the first day of hearings, the court indicated that some of the claims may be too old to be considered. But in a less positive opening gambit, judges said they must review whether VW should have disclosed the scandal as early as May 2014.

Investors who claim VW should have disclosed that it used a so-called defeat device as early as 2007 or until July 2012 may not have a case because of time-bar rules and because they cannot prove the required recklessness of the nondisclosure, presiding judge Christian Jaede said after opening the hearing on Monday.

But the court may conclude that VW should have told markets about a US study it learnt of in May 2014, which showed its cars emitted way too much pollution, Jaede said. The study was done by the International Council on Clean Transportation.

VW would then have to prove its executives had not acted in a "grossly negligent" way by not disclosing it at the time, he said. The judges will also look at whether VW was allowed to hold the information back to avoid hurting talks with the authorities.

Rigged engines

The judges will also review whether VW had to disclose that it used rigged diesel engines between July 2012 and May 2014 before the report was published, said Jaede.

For that period, VW could not argue that it needed to hold back the information because of talks with regulators as these only started after the ICCT study was published, Jaede said.

The view of the three judges hearing the case is preliminary and may still change, he said.

"We have to look at a lot of crucial issues on this case and we can’t give you a conclusive answer to all of them today," said Jaede. "It’s also not clear at this point whether and when we will hear witnesses."

Investors argue VW failed to give an early warning about its failure to comply with US emission standards and the resulting US regulators’ probe, which triggered a collapse in VW’s stock after it was disclosed three years ago.

Institutional investors

Enraged shareholders filed the first cases in October 2015. A year later, a wave of institutional investors followed, among them BlackRock, the California Public Employees’ Retirement System and Allianz Global Investors. The US is also a plaintiff in the case.

The proceedings were moved to the Braunschweig civic centre to make space for the hordes of lawyers as well as investors who want to attend. But more than two-thirds of seats in the audience weren’t taken.

Volkswagen admitted in late 2015 that it rigged diesel vehicles to cheat emissions tests in the US and that about 11-million vehicles worldwide could be affected. VW has calculated the scandal’s overall financial impact at €27.4bn. That includes payouts to US customers, states and regulators and a €1bn settlement with German prosecutors.

VW and Porsche, which is also a defendant in the case, both said they informed investors correctly at each stage.

Bloomberg

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