In the Wirecard case, the German Federal Court of Justice (BGH) issued a decision on November 13, 2025 (IX ZR 127/24), resolving a highly controversial question: If a management board violates ad-hoc disclosure obligations or other capital-market disclosure duties, and shareholders therefore bring capital-markets-based damages claims, but the company subsequently enters insolvency proceedings, what priority do such damages claims have in the insolvency? Are they treated as ordinary insolvency claims of other creditors, or do they rank behind them as membership-related rights? According to the BGH, the latter applies, because the claims are rooted in the shareholders’ status as owners of the company’s shares. This subordinated ranking can significantly improve the recovery rate of ordinary creditors.

The BGH derives the subordination from a comparison of claims from the perspective of insolvency law and its task of allocating the debtor’s financial shortfall appropriately: Who is “closer” to bearing the deficit? This convincing starting point highlights, however, two blind spots in capital-markets law: Capital-markets damages claims ignore (i) that it is the fellow shareholders who ultimately bear the economic loss of the stock purchasers, and (ii) that those who sold shares at an inflated price during the misinformation period may keep that benefit. The sellers thus pocket the gain that the remaining shareholders must compensate. This violates the constitutional guarantees of equal treatment and protection of share ownership.

Breaches of law arising from delayed filing for insolvency account, by case numbers, for the bulk of executive liability claims. At the same time, the number of insolvencies is rising again. The number of court decisions dealing with D&O liability issues or with questions of coverage by D&O insurers is also increasing. For that reason, we periodically make legal forays on our blog into practical aspects of delayed insolvency filings. The following blog contribution addresses the Federal Court of Justice (BGH) judgment of 2014, which made it easier for D&O insurers in coverage litigation to invoke the defence of knowledge where the insured managing director has breached an elemental professional duty (a cardinal duty). The Frankfurt Higher Regional Court (OLG Frankfurt) deepened and extended this case law in three decisions from 2025 concerning breaches of the duty to file for insolvency and the prohibition on payments once insolvency has arisen. The “cardinal-duty case law” inevitably increases the difficulty of the questions insolvency practitioners must confront when pursuing liability claims against managing directors with a view to attain D&O coverage. These difficulties also point to a deeper structural flaw in D&O insurance and its typical knowledge exclusion. This Survey 6 presents the OLG Frankfurt decisions against that background. It opposes a methodologically unfortunate lateral shift in the questions that are at the core of the matter. Once again the finding of US Supreme Court Justice Oliver Wendell Holmes of 1904 holds true: Hard cases make bad law.

Are compliance management systems (CMS) merely legal exercises with no real effect? Empirical evidence suggests that the effectiveness of CMS cannot be demonstrated. Suggestions on how to assess the effectiveness of CMS quantitatively or qualitatively do not, as things stand today, provide a reliable measurement, but only partial insights that tend to obscure the bigger picture. In the absence of reliable measurability, common standards (DIN, IDW PS 980, COSO, etc.), companies, and auditors are resorting to increasingly comprehensive and expensive mandatory programs - a “race to best practice” in order to avoid liability. This costs money that is lacking elsewhere, as well as time, systematically promotes risk aversion in companies beyond the realm of compliance, and is likely to dampen the quest for opportunities. All of this is often lamented, but accepted. However, the mentioned empirical findings have palpable legal consequences: Obligations that entail costs and other burdens must be evidence-based. Standards that are not empirically anchored are therefore not binding, especially since “CMS overinvestment” can itself be negligent. Instead of working through standards, company management can and must rely on their own intuition and trust, the latter all the more so the more “participatory” and “agile” the company is organized. This can—already at the level of legal application—further enhance corporate This can counteract further internal bureaucracy within companies, even at the level of legal application. The author has explained this in more detail in an article in the Journal of Commercial and Economic Law (ZHR 2025, 433 ff.) and in an interview in BOARD 2025, issue 3. The following blog post summarizes the considerations briefly. The BOARD can be found on the Blog.

According to a new CJEU ruling, fines under the General Data Protection Regulation are calculated based on group turnover. Does this also apply to the Digital Services Act and the Artificial Intelligence Act? Furthermore, the German Federal Court of Justice has referred to the CJEU the question of whether a company can seek recourse from responsible managers for corporate fines. In other words, the liability climate is becoming more challenging. This blog post explores these topics.

On a separate note I take licese to add the following: Economically speaking, it is the shareholders who bear the cost of corporate fines. This is inadequate and, in my opinion, violates EU fundamental rights. Increasingly harsher EU obligations also lead to ever more sophisticated, comprehensive compliance management systems, and systematically increase risk awareness and risk aversion in companies without correspondingly fostering the search for opportunities. This entails further high costs for companies and the economy at large and raises the question whether or not such costs are warranted in view of the few “black sheep” and the challenges which we presently face.

The number of D&O claims is rising - but why are more and more managers (including former managers) being targeted? This article provides an exclusive insight into current developments in manager liability: from typical project errors to antitrust violations and the recovery of state aid. With data from over 500 claims and concrete reasons for liability, the analysis shows how quickly a management error can turn into a risk worth millions - and why a good corporate strategy is more important today than ever.