Liability of Corporate Bodies of the Public Limited Company and Procedural Costs

Facts

Companies A. GmbH and B. AG, as creditors of the bankrupt company L. AG, brought an action for liability against seven directors and two audit firms who had held office at different times. They requested that the defendants be ordered to pay them the respective amounts of CHF 24,143.15 and CHF 38,853, plus interest, jointly and severally. The cantonal courts dismissed the claim. The claimants appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court dismissed the appeal regarding the allocation of costs and expenses. According to its established case law in ATF 122 III 324, when a claimant sues several defendants jointly and severally for the entire damage in a liability action based on company law (Art. 759 para. 2 CO), they shall only bear the procedural costs vis-à-vis one opposing party. However, the Federal Supreme Court specified that this principle is not absolute and that, in certain circumstances, particularly when the defendants have divergent interests requiring separate representation, it may be…