Porsche 2012 Annual Report Download - page 222

Financials
Notes to the consolidated fi nancial statements
Actions for damages in the United States
In 2010, 46 plaintiffs filed six actions for damages against Porsche SE in the United States District
Court for the Southern District of New York. The plaintiffs alleged damages of more than USD 2.5
billion. In three of the six actions, the former members of the executive board Dr. Wendelin
Wiedeking and Holger P. Härter are also named as defendants. Plaintiffs alleged in their com-
plaints that, in connection with its acquisition of a stake in Volkswagen Aktiengesellschaft during
the year 2008, Porsche SE issued false and misleading statements and engaged in market ma-
nipulation in violation of the United States Securities Exchange Act as well as in common law
fraud. Porsche SE considers the complaints to be without merit and filed a motion to dismiss.
On 30 December 2010, the U.S. District Court for the Southern District of New York granted
Porsche’s motion to dismiss the complaints in their entirety. Thirty-two of the original 46 plain-
tiffs have appealed the District Court’s decision to the U.S. Court of Appeals for the Second
Circuit. Oral argument before the Second Circuit was held on 24 February 2012 and the appeal
is pending. In early March 2013, 12 plaintiffs, of the most recent total of 32 plaintiffs in the ap-
pellate proceeding, withdrew their appeal before the U.S. Court of Appeals for the Second Cir-
cuit with Porsche SE’s consent. The effectiveness of the withdrawal of the appeal is subject to
its acceptance by the court. The appellate proceeding concerning the remaining 20 plaintiffs
remains unaffected by the withdrawal of the appeal. Porsche SE continues to consider the ac-
tions to be inadmissible and the claims to be without merit. For the twelve plaintiffs who have
now withdrawn their appeal, the action for damages against Porsche SE that has been pending
before the Regional Court of Braunschweig since the end of 2011, remains unaffected by the
withdrawal of the appeal. In this action the plaintiffs last alleged an overall damage of about €1.8
billion, though it remained unclear to what extent the alleged damage was comprised of damage
already asserted before the U.S. Court. Porsche SE considers the claim to be without merit.
Moreover, on 18 February 2011, three of the plaintiffs, and on 15 March 2011 a further 23 of
the plaintiffs, filed two actions in New York State Court (court of first instance). In their com-
plaints, they asserted claims for common law fraud and unjust enrichment on the basis of alle-
gations similar to those made in their complaints in the actions referred to above. The plaintiffs
claim to have lost at least USD 1.4 billion. Porsche SE’s motion to dismiss the complaints and
for summary judgment was denied on 6 August 2012. Porsche SE appealed this decision to the
New York Supreme Court Appellate Division for the First Department and also moved to stay
discovery in New York State Court pending a decision on Porsche’s appeal. Porsche SE's mo-
tion to stay discovery pending a decision on Porsche SE’s appeal was granted on 9 October
2012 and on 27 December 2012 the New York Supreme Court Appellate Division for the First
Department reversed the decision of the lower court and dismissed the complaints. Plaintiffs
filed a motion to reargue or in the alternative leave to appeal on 10 January 2013. On 31 January
2013, the parties entered into a stipulation under which Porsche SE agreed not to raise any
statute-of-limitations defense against the plaintiffs' claims, provided these are filed before a
court in Germany within 90 days and provided these claims were not already statute-barred
when the plaintiffs first filed their actions in the USA. Irrespective of this, Porsche SE considers
the claims filed to be without merit. Under the settlement, the plaintiffs withdrew their motion to
reargue or in the alternative leave to appeal. The parties consented to entry of a final judgment
dismissing plaintiffs’ complaints against Porsche SE in the New York State Court in their entirety.
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