Facts
The [X. AG] (plaintiff) operated a weaving mill until the end of 1995 and maintained extensive business relationships with [Z. AG] . When [Z. AG] went bankrupt on December 1, 1995, the plaintiff suffered a loss of CHF 647,111.--. The plaintiff holds the [Y. AG] as auditor, [B.] and [C.] as members of the board of directors, [A.] as managing director, and [D.] and [E.] as textile advisors liable for the damage. The plaintiff had the stock corporation law liability claims assigned to it by the bankruptcy administration and filed a lawsuit on September 19, 1997.
The Cantonal Court of Appenzell Ausserrhoden dismissed the lawsuit on April 28, 1999, and the FJA of Appenzell Ausserrhoden confirmed this judgment on June 27, 2000. The plaintiff appealed the judgment of the FJA.
Considerations
The Federal Court examined the appeal and found that the FJA had misinterpreted the concept of restructuring within the meaning of Art. 725a CO and the endangerment of creditors' claims within the meaning of the Federal Court's case law. The FJA had affirmed the admissibility of the restructuring without examining its prospects of success.
The Federal Court ruled that the appeal is partially justified and the judgment of the FJA is to be set aside and the case is to be referred back to the FJA for supplementation of the facts and a new decision. The FJA must now examine the profitability of the efforts to increase liquidity and decide whether the restructuring was…