Commercial Court orders the obtaining of an expert opinion on the going concern value. UBS CEO Ermotti contradicts UBS's arguments

In the proceedings of the former Credit Suisse shareholders against UBS pursuant to Art. 105 of the Merger Act, the Commercial Court in Zurich has ordered that a court expert opinion on the value of Credit Suisse as at 19 March 2023 at going concern value be obtained - an important interim success for the plaintiff shareholders. In addition, UBS CEO Sergio Ermotti contradicts UBS's argument in a public interview that CS was worthless at the time of the takeover.

After both the plaintiffs and UBS were able to freely present their side of the story twice, the Commercial Court set out the next steps in the proceedings on 19 June as part of a ruling on evidence. On the one hand, it ordered a court expert opinion on the going concern value of Credit Suisse as at 19 March 2023, and on the other, it ordered UBS to hand over numerous internal documents.

Expert opinion ordered by the court
By ordering a court expert opinion on the enterprise value of Credit Suisse as at 19 March 2023, the court is meeting one of the plaintiffs' key demands. It is all the more pleasing from the plaintiffs' point of view that the expert opinion ordered must determine the enterprise value of Credit Suisse at going concern values. The court thus implicitly rejects UBS's argument that Credit Suisse should - if at all - be valued at the generally significantly lower liquidation value. UBS's assertion that Credit Suisse was ‘worthless’ on 19 March 2023 in any case does not appear to have convinced the court either, as it could have refrained from ordering an expert opinion in this case.

The Commercial Court proposes two co-experts for the preparation of the expert report. The parties have until 3 July 2025 to raise objections to the proposed experts. Until then, the SASV will refrain from naming them.

Release of numerous internal documents
UBS must then submit various documents to the court by 14 July 2025 or provide conclusive reasons as to why it should be able to refuse to hand over these documents. Specifically, this concerns the following documents:

• All internal and external valuations of Credit Suisse prepared by UBS or Credit Suisse since 1 October 2022;

• UBS management's preliminary assessment of the consequences of a transaction with Credit Suisse, which was presented to the Strategy Committee on 19 December 2022

• Credit Suisse management's business plan dated February 2023 (for the years 2023-2027), which served as the basis for Rothschild & Co's fairness opinion;

• The analyst consensus approved by Credit Suisse for 2023-2025 and an extrapolation to 2028 - also the basis of the Rothschild valuation;

• Annual reports and financial and business figures of Credit Suisse available to Morgan Stanley & Co. at the time of the preparation of the fairness opinion dated 19 March 2023; and

• UBS management's internal business plans for Credit Suisse, which were available to Morgan Stanley & Co. at the time of the preparation of the fairness opinion dated 19 March 2023.

Interim success for the plaintiff
Above all, the ordering of a court expert opinion is an important interim success for the plaintiff's side. And since the Commercial Court expressly wants Credit Suisse to be valued at going concern value, it can be assumed that it has already considered the arguments of the parties in detail.

This is also evidenced by the Commercial Court's instruction to UBS to hand over very specific documents. It appears that the Commercial Court wants to form its own precise picture of the situation and the value of the merged companies and not simply rely on the assertions of the persons involved. This is very much to be welcomed.

Statements by Sergio Ermotti contradict UBS's procedural arguments
The statements made by its CEO Sergio Ermotti in the Sonntagszeitung on 22 June 2025 are also unlikely to be favourable for UBS: For example, Mr Ermotti stated that Credit Suisse could have been liquidated - as an alternative to the merger - without the taxpayer losing a single franc; because regardless of how Credit Suisse's business was managed, its capital position and balance sheet were strong enough to liquidate the bank under the current regime.

According to Sergio Ermotti, the consequence of such a liquidation would have been that Credit Suisse would have continued to exist, for example in the size of a cantonal bank. And that is not just his opinion:

‘Every single expert who was on the FSB (Financial Stability Board), the banking experts and all the others, were unequivocal: it would have been possible to restructure Credit Suisse and Credit Suisse would have had equity four times the minimum requirements on day one.’

Sergio Ermotti thus diametrically contradicts the view expressed by UBS during the court proceedings and the assessment of its expert, Dr Thomas Vettiger. Contrary to what UBS repeatedly claimed in the proceedings, UBS was also aware that Credit Suisse was never ‘worthless’ and that its shareholders would not have suffered a total loss even in the event of liquidation. On the contrary, according to the CEO of UBS and the experts it consulted, it would have been possible to reduce Credit Suisse to the size of a cantonal bank with sufficient remaining equity.
 

The "Swiss Association for the Protection of Investors" (Schweizerische Anlegerschutzverein, SASV) is committed to transparency on the Swiss capital market and the promotion and enforcement of investor rights in Switzerland. Its purpose is to protect the interests of investors with regard to financial investments and to support them in the enforcement of their corporate and economic interests. The aim is to ensure good corporate governance and transparency on the Swiss capital market.
The "Swiss Association for the Protection of Investors" (Schweizerische Anlegerschutzverein, SASV) is a not for profit-oriented organisation.


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