FILED: NEW YORK COUNTY CLERK 11/02/2013 INDEX NO /2013 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 11/02/2013 EXHIBIT 27

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1 FILED: NEW YORK COUNTY CLERK 11/02/2013 INDEX NO /2013 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 11/02/2013 EXHIBIT 27

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3 Certified translation from the German into the English language Researching under juris The Legal Portal Long Text Court: OLG [Higher Regional Source: Juris Court] Munich 19 th Civil Court of Appeal Date of decision: August 22, 2007 Standards Sec. 823 (2) BGB [German Civil Docket number: 19 U 3427/07 Code] Sec. 826 BGB, Sec. 852 (1) Document type: Decision BGB of Aug. 16, Sec. 263 StGB (German Criminal Code), Art. 229 Sec. 6 (1), sentence 2 BGBEG [Introductory Act to the German Civil Code], Art. 229 Sec. 6 (4) BGBEG Head Note Start of Limitation Period for Tortious Indemnity Claims Filed by an Investor because of Incorrect Ad Hoc Announcements 1. If an investor, after having incurred losses because of the acquisition of stock (here: in the year 2001), demands damages because of incorrect ad hoc announcements, the limitation period for the tortious claims pursuant to Art. 229, Sec. 6 (1), sentence 2, and (4) EGBGB is governed by Sec. 852 BGB in the version of August 16, What is relevant for the start of the limitation period is knowledge of the facts substantiating the claim. The investor may have this knowledge, if (here: in November 2001) the newspapers and magazines had already comprehensively reported on the allegations raised against the members of the management board for price manipulations. 2. The investor may not successfully claim that it would be unreasonable to expect him to file a claim until a criminal decision had been rendered against the members of the management board because of the confusing legal situation. Only in extreme exceptional cases, the start of the limitation period can be postponed for ignorance of law. Such an exceptional case is not given here. The suing investor overlooks that the legal questions and doubts he is presenting are not dealing with the occurrence of damages or the person of the (potential) obligor, therefore the circumstances the knowledge of which is relevant for the start of the limitation period pursuant to Sec. 852 (1) BGB in the version of August 16, Rather, they deal with whether a claim for damages is justified (from a legal perspective, e.g., calculation of the damages). Sources W M [Journal of Commercial and Banking Law] 2007, (revised head note and reasons) WuB [Commercial and Banking Law] IV A Sec. 852 BGB 1.08 (head note and reasons) Additional Sources ZBB [Journal of Banking Law and Banking) 2007, (revised head note) Procedural Process Above OLG Munich, 19 th Civil Court of Appeal, 27 July 2007, docket no. 19 U 3427/07, decision This decision is cited References Ekkehard M Jaskulla, WuB IV A See. 852 BGB 1.08 (Explanatory Note) [[NYLIT: v1:4561A: 10/29/ :44 PM]]

4 Page 2 of 2 Operative Provisions Reasons I. Plaintiffs appeal against the final decision made by the Higher Regional Court Munich I of April 23, 2007 is dismissed. II. The costs for the appeals proceedings including the costs for the intervention will be borne by Plaintiff 1at 32.5%, Plaintiff 2 at 21.7% and Plaintiff 3 at 45.8%. III. The value in dispute for the appeal proceedings is set at EUR 48, During the period from February to July 2000, Plaintiff purchased shares in various volumes from the legal predecessor of Defendant 2, whose chairman of the management board was Defendant 1. Intervener 2 was the vice-chairman, Intervener 1 the chairman of the supervisory board for the legal predecessor of Defendant 2. In October 2001, the Solicitor s Office of Munich I brought charges against Defendant 1 and Intervener 2 for incorrect ad hoc announcements relating to the ongoing business of the legal predecessor of Defendant 2. This was extensively covered in the regional and national press at the beginning of November In April 2003, both Defendants were sentenced to monetary fines for incorrect representation pursuant to Sec. 400 (1), No. 1 of the German Stock Corporation Act (AktG); Defendants appeal on points of law was dismissed in December In the complaint filed with the Higher Regional Court Munich I on December 27, 2005, Plaintiffs are asserting damage claims against Defendants because their investment decision had been based on the incorrect ad hoc announcements that had been made by the legal predecessor of Defendant 2. The Higher Regional Court Munich I dismissed the complaint with the challenged decision because the claims had become time-barred in October At the latest, when charges were filed in October 2001, Plaintiff should have been aware of the facts necessary to file a claim. 2, Plaintiffs appeal must be dismissed pursuant to Section 522 (2) ZPO as unfounded by way of a court order because the Court of Appeal is unanimous in its decision that the appeal has no chance of success, that the case has no fundamental significance, and that it does not require a decision by the Court of Appeal within the meaning of Sec. 522 (2), sentence 1, No. 3 ZPO. 3, Plaintiffs claims are time-barred. For the reasons for this decision, reference is made to the Court of Appeal s comments in the Chairman s order of July 27, 2007 (Sec. 552 (2), sentence 3 ZPO). Plaintiffs did not follow up with any further statements. 4. The cost decision is based on Sec. 97 (1) and Sec. 100 (2) ZPO. 5. Due to Plaintiffs full appeal against the decision handed down by the regional court of first instance, which dismissed the action, the value in dispute in the appeals proceedings is the same, i.e., the sum of the damage claims asserted by Plaintiffs. juris GmbH [[NYLIT: v1:4561A: 10/29/ :44 PM]]

5 Page 1 of 4 Higher Regional Court Munich Decision BeekRS 2008, of July 27, U 3427/07 Higher Regional Court Munich: Decision of July 27, U 3427/07 Chain of Laws: Comment: Save BGB old version Sec. 852 Fields of Law: Corporate law (together with Section 705 et seq. BGB) with M&A Securities Banking and Stock Exchange Act Monetary laws Constitution of the courts and civil proceedings Other civil law Key Words: Limitation period; knowledge of damages; damages; interruption of limitation period; Higher Regional Court Munich Docket No. 19 U 3427/07 Decision of July 27, O 25077/05 Higher Regional Court Munich I In the matter of 1. H. Mu. 2. D. St. 3. D. Sch., - Plaintiffs and Appellants - Counsel for Plaintiffs 1-3: Attorneys... versus T. Ha., I. E. TV AG, - Defendants and Appellees - Counsel for Defendant 1: Attorneys... Counsel for Defendant 2: Attorneys... for payment of damages I. Plaintiffs and Appellants are instructed that the Court of Appeal intends to dismiss the appeal pursuant to Sec. 522 (2) ZPO because it has no chance of success. The decision handed down by the Higher Regional Court Munich I on April 23, 2007 withstands the challenges of the appeal. Consequently, for cost reasons alone, the court suggests withdrawing the appeal. [[NYLIT: v1:4561A: 10/29/ :44 PM]]

6 Page 2 of 4 The following comments are warranted with regard to the appeal submissions: 1.) The Regional Court correctly assumed that Plaintiffs claims are time-barred, which entitles Defendants to refuse performance pursuant to Section 222 BGB, even if they were liable. The period of limitation for the tortious claims asserted by Plaintiffs is governed in this case pursuant to Art. 229, Sec. 6 (1), sentence 2, and Sec. 6 (4) EGBGB by Sec. 852 BGB (old version). Pursuant to Sec. 852 (1) BGB (old version) the start of the period of limitation requires knowledge of the damages and the obligor. This knowledge does not, however, refer to the presence of the claim itself, but the actual circumstances substantiating the claim (Palandt-Thomas, BGB, 60 th edition, Sec. 852, marg. no. 4; Federal Court of Justice (BGH) on October 17, 1995; VI ZR 246/94 (marg. no 15) = NJW 1996, 117 et seq.). It therefore suffices if oblige can take action against a particular person, even if it is just an action for a declaratory judgment, on the basis of the facts known to oblige which, if critically appraised, has that much chance of success that it must be allowed (BGH on March 03, 2005, III ZR 353/04 = NJW-RR 2005, 1148 et seq.). The Court of Appeal agrees with the Regional Court that Plaintiffs were aware of the pertinent facts, at the latest, in mid-november Defendants have submitted that numerous major newspapers and magazines had reported on November 6 and 7, 2001 about the charges the Solicitor s Office Munich I had brought against Defendant 1 and Intervener 2 at the end of October (Exhibit B 31). The subject matter of the charges was the price manipulations (incorrect ad hoc announcements) on which also Defendants lawsuit is based. This means that at least an action for a declaratory judgment could have been filed on the basis of these, possibly after having requested the indictment from the Solicitor s Office. This submission made by Defendants satisfies their burden of proof regarding the limitation period requirements, since Defendants have shown circumstances that substantiate their defense (refer here, for example, to BGH, NJW 1999, 2887), i.e., in this case facts that allow for the conclusion that Plaintiffs had knowledge of the relevant facts. Plaintiffs would therefore have had to dispute and disprove knowledge, since they have the secondary burden of proof with regard to the circumstances relevant to their perception (see Zoller-Greger, ZPO, 26 th edition, before Section 284, marg. no. 34). This did not happen. Since Plaintiffs had the required knowledge due to the aforementioned circumstances, it is irrelevant which initiative (BGH, NJW 2000, 953) Plaintiffs should have taken. Plaintiffs furthermore unsuccessfully assert that they could not have been expected to file a claim against Defendant 1 and Intervener 2 until at the earliest April 2003 when the decision in the criminal proceedings was handed down because of the [[NYLIT: v1:4561A: 10/29/ :44 PM]]

7 Page 3 of 4 confusing legal situation, which is why the limitation period would only start at that time. It is generally irrelevant whether Oblige correctly assesses the known facts from the legal perspective (BGH on October 17, 1995, VI ZR 246/94, l.c. and on March 03, 2005, III ZR 353/04, l.c.) so that the limitation period generally also starts, even if Oblige believes on the basis of the facts that Oblige does not have a claim (BGH on February 25, 1999, IX ZR 30/98 = NJW 1999, 2041 et seq.). Even changes to the current case law or a new decision handed down by the highest courts cannot decide on the existence of the claim or the beginning of the limitation period (OLG Saarbrücken on April 24, 2007; 4 U 410/06; Mansel, NJW 2002, 89, 92). Only in extreme, exceptional cases, the start of the limitation period may be postponed for ignorance of the law, if the legal situation is so complex or doubtful that even a knowledgeable third party would be unable to reliably assess the situation (BGH on March 03, 2005, III ZR 353/04, l.c.). Contrary to Plaintiffs opinion, however, this is not the case here. Plaintiffs overlook that the legal issues and doubts they are presenting do not deal with the occurrence of damages or the person of the (potential) obligor, i.e., the circumstances which Plaintiffs had to be aware of for the limitation period to start in accordance with Sec. 852 (1) BGB (old version), but whether a claim for damages (in the legal view, e.g., calculation of the damages) could be justified. A legal misinterpretation in view of clear facts does not suffice, however (OLG Saarbrücken on April 24, 2007 l.c.). It is not the objective and purpose of See. 852 (old version) BGB to favor legally doubtful claims in terms of the limitation period (see BGH, DB 1974, 427). Therefore, the start of the limitation period also does not depend on whether the action to be taken appears to have little or no risk (BGH, VersR [Insurance Law] 1959, 274; 1963, 578/579; NJW 2001, 885/886). Obliges interests are adequately taken into account by the fact that the provisions of Sec. 852 BGB (old version) grants them a period of three years to consider whether they want to take the risk of a lawsuit (BGH, DB 1974, 427). Therefore, the fact remains that Plaintiffs had knowledge of all the facts, at the latest, in November 2001 that are necessary for the start of the limitation period so that the three-year limitation period had expired in November 2004 and could no longer be interrupted by the claim filed on December 27, The requirements of Sec. 552 (2), sentence 1, No. 2 and 3 are also met. Whether adequate knowledge existed about the fact that charges were filed and about the extraordinarily extensive and detailed news reports within the meaning of See. 852 (1) BGB (old version) is not a legal question of fundamental significance within the meaning of Sec. 522 (2), sentence 1, No. 2 and 3 ZPO that can be generalized. The circumstance that there are numerous parallel proceedings does not change this fact. Since what matters here are the circumstances of each particular case, the Court of Appeal is therefore not deviating from different decisions handed down by the highest [[NYLIT: v1:4561A: 10/29/ :44 PM]]

8 Page 4 of 4 courts. In addition, some of the other Courts of Appeal in the Higher Regional Court of Munich have already utilized the option provided by Section 552 (2) ZPO in parallel proceedings relating to actions brought by other E TV investors, where also the limitation period issue was relevant for the decision (decision rendered by the 18 th Court of Appeal on May 23, 2007 (18 U 5657/06) and June 28, 2007 (18 U 4738/06), the 7 th Court of Appeal on May 14, 2007 (7 U 5561/06) and July 10, 2007 (7 U 2560/07) as well as the 17 th Court of Appeal on July 13, 2006 (17 U 2315/06) and July 24, 2006 (17 U 1991/06). 2.) The appeal furthermore does not have a chance of success with regard to the cost decision made by the Regional Court. Contrary to the explanations provided in the substantiation of appeal, Plaintiffs were not jointly and severally ordered to bear the costs; they are therefore liable pursuant to Sec. 100 (1) ZPO per capita. Only the cost assessment decisions are based on a joint and several liability of the Plaintiffs (which is legally incorrect). These, Plaintiffs would have to challenge separately with the reminder remedy. Plaintiffs furthermore unsuccessfully criticize that the Regional Court did not apply the provisions of Sec. 100 (2) ZPO and that the costs had not been distributed based on the percentage of each individual plaintiff s share. Sec. 100 (2) ZPO grants the Court the discretion to base its decision on such participations. Consequently, it can only be reviewed to a limited extent in the appellate courts. In this case, it was not (yet) wrong based on the legal facts of the matter, to distribute the responsibility on a per capital basis (Sec. 100 (1) ZPO). The participation ratios do not (yet) differ significantly (also refer to Baumbach/Lauterbach/Albers/Hartmann, ZPO, 54 th edition, Sec. 100, marg. no 32 and 35). On the basis of the legal acceptance of a certain cost injustice, a cost ratio deviation in the event of a per capital distribution is tolerable (Baumbach/Lauterbach/Albers/Hartmann l.c.). The deviation is within these limits; also the deviation in absolute amounts for the individual plaintiff is approximately EUR 1, and therefore insignificant in view of the amount in dispute. II. The Appellants have the opportunity to respond to the statements made under 1. until August 20, 2007 (Sec. 522 (2), sentence 2 ZPO). [[NYLIT: v1:4561A: 10/29/ :44 PM]]

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