The tribunal in 2021 gave investors a boost when it said Europe’s largest automaker may be liable for not telling the markets about the defeat device if top management knew about it. Any investors seeking damages for losses up until July 9, 2012 have to prove that the management board knew about the deceit, the court ruled at the time. From that date onward, VW has to prove its executives did not intentionally or negligently fail to disclose that information.
Ever since the scandal broke in 2015, VW’s main line of defense has been to blame a small group of engineers that it said colluded to rig the software and hid their tricks from company leadership.
Winterkorn has been charged over the scandal but his trial has not yet started due to health issues.
Since he is a suspect in a criminal case, he can decline to testify in court, making it unlikely that he will show up in the investor suit. Other witnesses under investigation may also invoke these privileges.
The case is Deka Investment GmbH v. Volkswagen AG and Porsche Automobil Holding SE (3 Kap 1/16).
