On 18 February 2015, the German Court of Appeal (Oberlandesgericht Düsseldorf; "OLG Düsseldorf") confirmed that the assignments of claims to claim vehicle ("CDC") in a follow-on action for damages in the cement cartel are void under German law. It held that the assignments violated German public morals (gute Sitten) as it was foreseeable at the time of the assignments that CDC would not be able to meet a possible future litigation cost order. The financial risks involved in litigation were thus unjustifiably shifted to the defendants [See our March 2015 newsletter article]. The OLG Düsseldorf thereby upheld the judgment of the Landsgericht Düsseldorf of 17 December 2013 [See our January 2014 newsletter article]. The OLG Düsseldorf recently published its judgment in full.

The OLG Düsseldorf held that it is up to the claimant to show that it has sufficient financial means at its disposal at the time of the assignments (sekundären Darlegungslast). In this case, CDC failed to do so. The OLG Düsseldorf rejected CDC's argument that the value of the assigned claims themselves would suffice to cover a possible future litigation cost order. The OLG Düsseldorf confirmed that the relevant moment to assess whether a legal act violates public morals, is the moment the act is performed. Therefore, CDC's statements with regard to its financial position after the assignments took place, were held irrelevant.

Furthermore, the OLG Düsseldorf held that it is not necessary to establish that the parties to the assignments intended to violate public morals. It suffices that they knew of the facts constituting the violation, or that they chose to ignore such facts. In this case, the OLG Düsseldorf held that the shift of the risk involved in litigation was an important purpose of the assignments. It also held that the parties to the assignments knew or should have known and accepted the risk that CDC might have insufficient funding to meet a possible future litigation cost order.

CDC decided not to appeal this judgment by the OLG Düsseldorf, rendering it a final judgment.

The question of the validity of assignments to claim vehicles is at issue in several follow-on proceedings before national courts within the EU. One of them is the paraffin-wax case in the Netherlands. In that case, on 17 December 2014, the District Court of The Hague found that the assignments of damage claims to a different CDC entity were valid under German law. The District Court held that CDC had sufficient funds to meet a possible future litigation cost order at the time of the assignments [See our January 2015 newsletter article].