Liability of the Auditor pursuant to Art. 754 CO

Facts

The case concerns the liability of the accounting expert X. as the auditor of the public limited company Z. (AG [Z.]). AG [Z.] ran into financial difficulties, whereupon AG [F.] under the management of [M.] acquired shares of AG [Z.] and supported its restructuring. [M.] and AG [F.] later filed a lawsuit against X. for the payment of a total of 1.37 million Swiss francs, as they claimed that X. was liable for his activities as the auditor.

The Commercial Court dismissed the claim, as the plaintiffs were no longer creditors of AG [Z.] at the time the lawsuit was filed. On appeal by the plaintiffs, the Federal Supreme Court set aside the judgment and referred the matter back to the lower court for supplementation of the facts and a new decision.

Considerations

The Federal Supreme Court clarified that for the plaintiffs' standing to sue under Art. 754 CO, it does not matter whether they were still creditors of AG [Z.] at the time the lawsuit was filed. The decisive factor is whether they were directly harmed as creditors, even if they later lost their creditor status.

The Commercial Court had denied the standing to sue, as the plaintiffs had partially assigned or waived their claims against AG [Z.] in the course of the restructuring. However, the Federal Supreme Court sees this differently: Even if the plaintiffs lost their creditor status…