Facts
The N. Foundation (from October 21, 2005: BVG Collective Foundation of N.) was registered in the Commercial Register of the Canton of Zug in 2003 and aimed to carry out any form of occupational pension provision. [A. AG] was active as the supervisory body for the foundation from the beginning of 2004.
On July 14 and August 2, 2006, the Federal Social Insurance Office (BSV) as the supervisory authority ordered the suspension of all eight incumbent foundation board members and appointed O. and [P.] as interim foundation board members. On August 17, 2006, [P.] filed a criminal complaint with the Zug Investigating Magistrate's Office against B. (foundation board president since the foundation's establishment), E., and possibly other persons for unfaithful business management and misappropriation of assets. By order of September 1, 2006, the BSV ordered the dissolution of the foundation and the dismissal of the suspended foundation board members, and appointed the interim foundation board members as liquidators.
The BVG Guarantee Fund granted an advance of CHF 33,000,000 at the request of the foundation to ensure statutory benefits. The Guarantee Fund took over the claims against 13 (natural and legal) persons, including [A. AG], and had all claims assigned to it by the foundation.
Considerations
According to Art. 52 para. 1 BVG, all persons entrusted with the administration, management or control of the pension fund are liable for the damage they intentionally or negligently cause to it. This also includes the supervisory body (Art. 53 para. 1 BVG).
The lower court found that the appellant [A. AG] as the supervisory body had violated its duty of care. In particular, it had not sufficiently recognized and reviewed the…