Porsche 2012 Annual Report Download - page 120

has dropped its investigations against the two
former members of the executive board Dr.
Wiedeking and Mr. Härter in connection with alle-
gations of breach of fiduciary duty.
The Stuttgart public prosecutor brought charg-
es against three managers of the finance depart-
ment of Porsche SE with the Chamber for Com-
mercial Crimes of the Regional Court of Stuttgart
on suspicion of obtaining credit by deception. The
main proceedings were opened by decision of the
Regional Court of Stuttgart dated 25 June 2012.
The accusation is that one of the banks involved
during the negotiations for follow-up financing for
the 10 billion euro loan due for repayment in March
2009 was provided with false information on de-
rivatives held by Porsche SE relating to VW ordi-
nary shares. The main proceedings began on
5 September 2012 and are still ongoing. On
26 November 2012, the Regional Court announced
in the public main proceedings that the case
against one of the accused would be dropped
pursuant to Sec. 153 a German Code of Criminal
Procedure (StPO).
Porsche SE considers the allegations made by
the public prosecutor to be without merit.
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 2.5 billion
US dollars. 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 complaints
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 manipulation 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 origi-
nal 46 plaintiffs 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 plain-
tiffs, of the most recent total of 32 plaintiffs in the
appellate proceeding, withdrew their appeal before
the U.S. Court of Appeals for the Second Circuit
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 actions 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 euro, though it
remained unclear to what extent the alleged dam-
age was comprised of damage already asserted
before the U.S. Court. Porsche SE considers the
claim to be without merit. We refer to the corre-
sponding reporting in the section “Subsequent
events” in this management report.
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 complaints, they
asserted claims for common law fraud and unjust
enrichment on the basis of allegations similar to
those made in their complaints in the actions re-
ferred to above. The plaintiffs claim to have lost at
least 1.4 billion US dollars. Porsche SE’s motion to
dismiss the complaints and for summary judgment
was denied on 6 August 2012. Porsche SE ap-
pealed this decision to the New York Supreme
Court Appellate Division for the First Department
and also moved to stay discovery in New York
2The company
Group management report
2116