By partial and interlocutory judgment dated 17 September 2024 (case no. 5 U 7318/22 e), the Munich Higher Regional Court ruled on an important question in the Wirecard insolvency proceedings: the judgment clarified how to classify deceived shareholders’ claims for damages under capital markets law in the Wirecard case for the purposes of insolvency law. Case law has not yet clarified whether shareholders are to be classified as insolvency creditors under Section 38 of the German Insolvency Code, which would enable them to file their claims for registration in the insolvency administrator’s schedule of claims and receive a pro rata distribution at the end of the proceedings, or whether they are to be regarded as lower-ranking creditors within the meaning of Section 39 of the German Insolvency Code, in which case their claims would not be settled until settlement in full of all claims filed for registration in the insolvency administrator’s schedule of claims and approved (“absolute subordination”). With an average dividend in insolvency of only three to five per cent for insolvency creditors, it goes without saying that lower-ranking creditors usually receive absolutely no distribution on their claims.
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