Due to a change in German case law, the Foundation is forced to adapt its approach – this requires the short-term cooperation of the participants of the Foundation.
Originally, the Foundation planned that, if out-of-court settlement negotiations with EY would not prove successful, a lawsuit would be filed on behalf of all investors in the form of a so-called subjective joint litigation in order to protect the claims from the limitation period and to jointly enforce them against EY. Such litigation would have been carried out on the basis of powers of attorney from the investors to the Foundation and the German law firm Nieding + Barth.
However, due to a recent change in the legal opinion of the Munich Regional Court I, filing a lawsuit in the form of a subjective joint action carries a significant risk of being split into countless individual lawsuits. This is precisely what the Foundation wants to avoid. In order to pursue and enforce the claims jointly – as a community – on behalf of all investors a different approach is necessary.
In order to pursue this joint approach further, the so-called "assignment model" has been developed.
Under this assignment model, the investors registered with the Foundation – i.e. the participants in the foundation – assign their claims in trust to a company established specifically for this purpose on a fiduciary basis. The special feature of such a fiduciary assignment is that the company may sue for the assigned claims in its own name and in a joint action but may only dispose of the claim vis-à-vis the assigning investors in order to enforce their damage claims. Under this assignment model, the relevant company continues to be authorized to dispose of the assigned claims by way of settlement, as was also provided for under the original model of subjective joint litigation. In this way, it remains possible for the Foundation to bundle the claims of all participants and keep the procedural costs for the financier at a manageable level. The originally intended approach is thus maintained with the assignment model.
Such a company has already been established in the form of Collective Redress Deutschland GmbH, Peter-Müller-Straße 14, 40468 Düsseldorf, Germany (hereinafter referred to as "CRD GmbH"). CRD GmbH has already applied for the necessary registration with the responsible authority under the German Legal Services Act (RDG), which registration is expected to be completed shortly.
The assignment model is made possible by sending the assignment agreement and the General Terms and Conditions (GTC) to the participants of the Foundation by email. The assignment agreement must be signed in wet-ink by hand and the original document must be sent to CRD-GmbH immediately, but not later than 1-12-2023. Furthermore, a scan or (clearly readable) photograph of the complete assignment agreement is to be sent in advance to email@example.com
The Foundation asks for your attention that it cannot continue to act for the respective participant without the signed assignment agreement. Should the above-mentioned deadline pass without the respective participant having a signed assignment agreement, the Foundation assumes that this participant is not interested in pursuing his/her claims further. The Foundation asks that this deadline be taken seriously, as otherwise timely processing cannot be guaranteed.
The registration authority of CRD-GmbH is the Higher Regional Court of Düsseldorf, Cecilienallee 3, 40474 Düsseldorf.
Private investors are legally entitled to revoke the assignment agreement. Therefore, you can formally revoke your participation by filling out the document "Muster-Widerrufsformular" and submitting it in due time. The "Muster-Widerrufsformular" is attached to the assignment agreement.
Due to the number of documents sent, it is not possible for CRD-GmbH to directly confirm the postal submission of your assignment agreement. For this reason, you are recommended to send the assignment agreement to CRD-GmbH by registered mail (“Einwurf-Einschreiben”, without return of receipt). However, this is not mandatory. As soon as CRD-GmbH has reviewed your assignment agreement, you will receive corresponding feedback.
For this reason, we ask that you send a scan or photo of the complete assignment agreement to firstname.lastname@example.org. Please note that this is not a replacement for mailing the original document. If we do not receive the original document in time, we can use your digital version temporarily and will request you to resend the Assignment Agreement at a later stage.
We will not be able to pursue your claims. You will not be included in the lawsuit and there is then a strong possibility that your claims will be time-barred after 31 December 2023.
It is necessary that you send the assignment agreement in its entirety. This applies to sending the original as well as sending it as a scan/photographs in advance. For private investors the document is five pages (including one page of data and signatures) and for institutional investors the document is six pages (including two pages of data and signatures). You do not need to send the General Terms and Conditions.
A: Yes, there is a deadline, you will have to sign and send the agreement before 01.12.2023.
You will receive additional emails from the Foundation and CRD-GmbH urging you to complete your registration. If you do not follow the instructions and complete your registration, you could be excluded from the lawsuit.
As with the power of attorney, you must also sign the assignment agreement by hand, as unfortunately a digital/electronic signature is not sufficient under German law.
You must have registered with the Foundation. Each registrant who has signed the participation agreement (PA) will receive the Assignment Agreement and General Terms and Conditions (GTC) via email. Please sign this Assignment Agreement by hand with wet-ink signature and send the complete original to:
Collective Redress Deutschland GmbH