Lehman certificates and disclosure the applicant, who was working as a qualified bank clerk, takes a Bank for damages due to a faulty investment advice relating to certificates of now in bankruptcy of are Lehman Brothers Inc. claim. The applicant maintained a custody account at the respondent Bank, about number series securities transactions have been settled for several years. In 2007, it came to a telephone consultation. Then, the applicant acquired certificates of Lehman Brothers worth 20,000 euros.
Here, the Bank received a “donation” in the amount of 3.5% of the principal amount of the certificates without informing it of the investor. In the wake of the bankruptcy of the American parent company, acquired certificates were largely worthless. The Court of appeal has fully affirms the claim of the applicant and he-a violation of disclosure to know. Technically, the Bank had initially acquired the certificates of Lehman brother itself and thereby receive a discount. At the The applicant the normal value was then required resale, which resulted in the profit to the Bank. Even if it is not a drawback, but rather a placement fee, a note should have been done. The Bundesgerichtshof, however, rejects this point of view. A consultancy agreement has come about without any problems between the two parties.
This agreement is required to notify the Advisory Bank to an investor – and object-oriented advice. Content and scope of the consultation obligations here depend on the circumstances of the individual case. On the one hand, the knowledge, the risk-taking and the investment objective of the customers and on the other hand, the General risks, such as about the economic situation and the development of the capital market, as well as the special risks arising from the peculiarities of the investment object are relevant. The advice has to contain information that are in the investment decisions of importance. The investor bears the risk that despite comprehensive briefing the investment proves wrong. Against this background, the BGH after had been breached no duty of disclosure. A bank that sells certificates through a fixed price transaction, shall not be obliged to inform their customers, that she made a profit with the returned product. In this constellation, it was obvious that the Bank pursues own profit interests for the investors. It is irrelevant what manner, the Bank realized their profit interests. Since here the purchase order expressly by the Bank “in the way of fixed price business”, was sufficiently clear for the applicant, how the sale was carried out. Therefore a claim for damages not on a wrong advice or information breach of duty can be in the presented case support. In its judgment, the Supreme Court concludes that to differentiate in damages is between various disposal options. Also the personal expertise of the investor can play a role and possibly prevent a claim. Bundesgerichtshof, judgment of 16. October 2012 – XI ZR 367/11 contact Bernd rechtsanwalts GmbH Wilhelm-Weber-str. 39 37073 Gottingen phone: + 49 (0) 551 495 669-0 fax: + 49 (0) 551 495 669-www.bernd-rechtsanwaelte.de manages the Bernd rechtsanwalts GmbH with locations in Dusseldorf, Gottingen and Hannover 19 and represents companies, initiators, financial institutions and investors in all aspects of economic and capital market law. Focus is here on corporate and project finance, in particular the concept of capital market products and the creation of prospectuses as well as the financial services and capital market law, in particular in connection with the enforcement and defense of claims and disputes with the BFin.