Facts
This case was about the liability of the Board of Directors of Y. Beteiligungen AG towards shareholder A. for the costs of an unsuccessful lawsuit over the registration of registered shares in the company's share register. The Federal Supreme Court had to assess whether the Board of Directors' decision to have the registration issue judicially decided was a breach of duty.
The respondent A., as a shareholder of Y. Beteiligungen AG, claimed the damage incurred by the company due to the costs of the legal proceedings regarding the registration of her registered shares. She saw the unlawful and culpable conduct of the Board of Directors in the fact that it pursued this legal dispute, although the refusal to register was an abuse of rights and therefore unfounded.
Considerations
The Federal Supreme Court stated that the abusive conduct of legal proceedings can generally constitute a breach of the duty of loyalty under Art. 717 para. 1 CO. If a lawsuit appears hopeless from the outset, the risk of incurring costs in the event of defeat must be reckoned with, which is contrary to the company's interests.
In the present case, the Federal Supreme Court concluded that the appellants had no factual reasons in the company's interest for refusing the registration at the time of the decision to initiate the lawsuit. They should therefore have been aware in advance that the refusal to register would not withstand the courts due to an abuse of…